BOARD DATE:	  February 25, 2010

		DOCKET NUMBER:  AR20090020731 


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 DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the periods 1 January 2006 through 
21 May 2006 and 22 May 2006 through 15 October 2006 be removed from his official military personnel file (OMPF).

2.  The applicant states that he believes the NCOERs were entered as retaliation for a protected communication by him to the Department of Defense Inspector General (DODIG).  He contends that a DODIG report substantiates his allegations for one of the NCOER's and recommends that he undertake action to have it removed.  He indicates the other NCOER should be removed because although all of the paperwork was not present to meet the burden of proof for the IG, he believes the NCOER was also in retaliation for a complaint he made with the DODIG.

3.  The applicant provides a copy of the DODIG report and DA Forms 2166-8 (NCO Evaluation Report) covering the periods 1 January 2006 through 21 May 2006 and 22 May 2006 thorough 15 October 2006 in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of staff sergeant in an Active Guard Reserve status. 



2.  The applicant’s DA Form 2166-8 for the period 1 January 2006 through 
21 May 2006 shows he was rated as "Needs Improvement (Some)" for Physical Fitness and Military Bearing with a bullet comment "needs to learn to remain calm and poised under pressure."  He was rated "Successful (2)" for overall performance and he was rated "Superior (2)" for overall potential for promotion and/or positions of greater responsibility by his senior rater with a bullet comment "received a counseling statement from the commander for disrespect and insubordination to an officer."

3.  The applicant’s DA Form 2166-8 for the period 22 May 2006 through 
15 October 2006 shows the rater provided a "No" entry for loyalty, duty, and respect in Part IV (Army Values/Attributes/Skills/Actions) with a bullet comment "hereby reprimanded for not abiding to the Army Values, especially Loyalty, Duty and Respect."  He was rated as "Needs Improvement (Some)" for Physical Fitness and Military Bearing with a bullet comment "does not have the mental toughness to meet the requirements for the position presently occupied."  He was rated "Successful (3)" for overall performance and he was rated "Superior (3)" for overall potential for promotion and/or positions of greater responsibility by his senior rater with bullet comments "failed to abide to the Army Values, especially Loyalty, Duty and Respect;" disrespected me, his superior officer and for this behavior he received a Severe Letter of Reprimand," and "his behavior was inconsistent with that of a non commissioned officer and a Soldier."

4.  In support of his claim, the applicant provided a letter, dated 12 November 2009, from the Director, Military Reprisal Investigations, DODIG.  The letter states, in pertinent part, that an investigation into his reprisal allegations (that his company commander gave him two unfavorable NCOERs in reprisal for his protected communications alleging security violations by his company leadership to the DODIG, a U.S. Army investigating officer, a military equal opportunity advisor, and an inspector general) was completed.  The investigation found that the applicant's company commander did not reprise against him with regard to his NCOER for the period 1 January 2006 to 21 May 2006.  However, the investigation found that his company commander gave him an unfavorable NCOER for the period 22 May 2006 to 15 October 2006 in reprisal for his protected communications.  The investigation also found that his company commander and first sergeant violated Army Regulation 623-3 (Evaluation Reporting System) by referring in his 22 May 2006 to 15 October 2006 NCOER to an incident which occurred outside the rating period.  The applicant also provided a redacted copy of the report of investigation.     

5.  A review of the applicant’s OMPF on the Integrated Personnel Electronic Records Management System revealed a copy of the NCOERs in question.  

6.  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, in pertinent part, that an NCOER will be filed permanently in the performance section of the OMPF.

7.  Army Regulation 623-3 states, in effect, that 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 contentions of the applicant have been carefully considered.  

2.  The applicant's NCOER covering the period 1 January 2006 through 21 May 2006 is properly filed in his military records in accordance with the governing regulation.  There is no evidence that it was improperly imposed.  The DODIG investigation found that his company commander did not reprise against him with regard to this NCOER.  There is also no evidence of record and the applicant has provided no evidence which shows that he should have received more favorable ratings by the rater or senior rater.  Therefore, there is no basis for granting the applicant's request to remove this NCOER from this OMPF.

3.  Based on the DODIG investigation which found that the applicant's company commander gave him an unfavorable NCOER for the period 22 May 2006 through 15 October 2006 in reprisal for his protected communications, it would be equitable to delete this NCOER from his OMPF.  In addition, a nonrated statement for the period 22 May 2006 through 15 October 2006 should be filed in his OMPF in place of this NCOER. 







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ____x____  _x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the DA Form 2166-8 covering the period 22 May 2006 through 
15 October 2006 from his OMPF; and   

	b.  filing a nonrated statement for the period 22 May 2006 through 15 October 2006 in his OMPF.
 
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to deleting the DA Form 2166-8 covering the period 1 January 2006 through 21 May 2006 from his OMPF.   




      _______ _   _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)                                         AR20090020731





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ABCMR Record of Proceedings (cont)                                         AR20090020731



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