BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20090021765 


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 the DA Form 2166-8 (Noncommissioned Officer Evaluation Report [NCOER]) ending August 2002 be removed from his official military personnel file (OMPF).

2.  The applicant states the NCOER is inaccurate for the following reasons:

* NCOER was completed after his discharge 
* Report indicated he dropped out of the Primary Leadership Development Course (PLDC)
* NCOER lists he failed to attend annual training (AT), but PLDC was his AT

3.  The applicant provides a copy of the NCOER in question; discharge
Orders 03-262-00005, dated 19 September 2003; and DA Form 1059 (Academic Evaluation Report) in support of this application.

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 contains Orders 03-262-00005, Headquarters, 94th Regional Readiness Command, Ayer, MA, dated 19 September 2003, which show he was honorably discharged from the U.S. Army Reserve (USAR) effective 19 September 2003.

3.  The applicant's contested NCOER for the period September 2001 through August 2002 shows his rank as sergeant (SGT) with a date of rank of 20 September 2001.  His primary military occupational specialty is listed as 77F (Petroleum Supply Sergeant).  He was assigned to the 439th Quartermaster Company, 94th Regional Readiness Command, New Haven, CT, during the period of the report.  This was the applicant's only NCOER.

4.  The contested report shows the applicant was rated by the petroleum supply sergeant (a staff sergeant) and senior rated by the petroleum supply squad leader (a sergeant first class).  The reviewer was his platoon leader (a first lieutenant).  The report was signed by the rater, senior rater, and reviewer on 15 December 2003, nearly 15 months after the rating period ended and 3 months after the applicant was discharged.  The applicant was listed as unavailable for signature.

5.  A review of the applicant's NCOER shows he received a "NO" rating in block 4 (Selfless-Service) of Part IV (Army Values/Attributes/Skills/Actions).  He was rated as "Marginal" by his rater with a "Fair 4/Fair 4" rating rendered by his senior rater in Part V (Overall Performance and Potential).  He also received a "Needs Improvement (Some)" rating in the following areas:

	a.  Competence

* Soldier needs to improve his dedication; he dropped out of PLDC and did not attend AT 2002
* has a poor record of drill attendance
* doesn't have a clear understanding of all factor [sic] of duty assignment

	b.  Leadership

* not every effort is made to see that each member of the team meets expectations
* cannot do everything that is expected of those who are under his leadership, or match members of the team in some tasks

6.  The applicant submitted a copy of his DA Form 1059 from PLDC, dated 11 June 2002, which contains the following relevant entries:

* Period of Report:  20020601 through 20020611
* Duration of Course:  20020601 through 20020615
* Performance Summary:  Failed to Achieve Course Standards
* Comments:  failed to achieve course standards by failing the land navigation evaluation and retest

7.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), then in effect, states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to be prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the applicant.

8.  Army Regulation 623-205 states that the rated Soldier's signature verifies the accuracy of the administrative data in Part I (Administrative Data), to include nonrated time; the rating officials in Part II (Authentication); the Army Physical Fitness Test, height, and weight data; and that the rated Soldier has seen the completed report.  This action increases administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data.  In the event the rated Soldier is not available or refuses to sign, senior raters will provide an explanation in their narrative or bullet comments and ensure the completed NCOER arrives at U.S. Army Human Resources Command, St. Louis, not later than 90 days after the through date of the report.

9.  Army Regulation 623-205 states that Army evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in the regulation.  Consideration will be given to:

* the relative experience of the rated NCO
* the efforts made by the rated NCO
* the results that could be reasonably expected given the time and resources available

10.  Army Regulation 623-205 states that the primary purpose of a commander's inquiry (CI) is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at Department of the Army Headquarters.  Rating officials will evaluate a rated individual and their opinions constitute the organization's view of that Soldier.  However, the commander may determine through inquiry that the report has serious irregularities or errors.  If the commander finds no fault with the evaluation, then the CI is filed locally and a copy given to the rated individual.

11.  Army Regulation 623-1 (Academic Evaluation Reporting [AER] System) states the DA Form 1059 is used to report the performance of students attending Army service schools, Department of Defense schools, USAR schools, NCO academies, allied nation schools, and Reserve Component chaplain candidates for training, as well as formal school status.  Time covered in Academic Evaluation Report-producing schools is nonrated in the NCOER that covers the same period.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged from the USAR on 19 September 2003.  The NCOER was signed by the rating officials on 15 December 2003 which was 15 months after the rating period ended and 3 months after the applicant was discharged.  This explains why he was not available for signature, but the senior rater failed to explain the absence of the applicant's signature in his narrative portion of the contested report as required by regulation.

2.  The applicant's NCOER states he dropped out of PLDC and did not attend AT in 2002.  However, the applicant's DA Form 1059 shows he was enrolled in PLDC from 1 July 2002 through 11 July 2002 and was dismissed for failure to meet course requirements.  Therefore, the statement made by his rating official that the applicant "dropped out of PLDC" is inaccurate.

3.  The applicant also argues the NCOER states he failed to attend AT, but he contends that he attended PLDC in lieu of AT.  However, there is no evidence and the applicant did not submit any to support this argument.  Therefore, the presumption of regularity must be applied.
4.  The evidence of record further shows this was the applicant's first and only NCOER.  The evaluation report was rendered 15 months after the through date and without the applicant's signature.  Additionally, the senior rater neglected to comment on why the applicant was unavailable to sign the report and the report contains an inaccurate statement concerning PLDC.

5.  Regardless of any reasons the rating chain may have had for rendering the adverse report 15 months after the fact, this clearly created an injustice the applicant could never hope to overcome.  The late processing hindered his ability to resolve his issues through command channels or using the CI and/or the Inspector General.  Therefore, in the interest of justice it would be appropriate to remove the contested report.

BOARD VOTE:

___x_____  ___x____  __x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the evaluation report in question from the applicant's 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)                                         AR20090021765



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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