IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100022020 


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 deletion of a Noncommissioned Officer (NCO) Evaluation Report (NCOER) for the period ending 14 June 2008 and promotion reconsideration to the rank and pay grade of sergeant first class (SFC)/E-7 under the 2009 and 2010 year criteria.  He also requests the DA Form 638 (Recommendation for Award), dated 9 August 2010, be considered for approval.

2.  He further requests a personal appearance before the Army Board for Correction of Military Records (ABCMR) at his own expense due to the extenuating circumstances regarding this case and the reprisal that he has been the victim of for nearly 7 years.

3.  He states the results of his NCOER appeal were provided to him on 20 March 2010.  The appeal resulted in a partial approval and changed some of the administrative data on the report, but none of the substantial data was altered.  The Army Special Review Board (ASRB) concluded his rating chain was regular because he was unable to provide a copy of the rating scheme.  He prepared his appeal while deployed.  Despite numerous requests by him for his unit to provide a rating scheme for him to include with his appeal, he received nothing.  The ASRB also concluded that his rating should stand, even though his rater stated it was inaccurate.  The ASRB indicated that subsequent statements from rating officials often reflect retrospective thinking prompted by an appellant's nonselection or other unfavorable personnel action claimed to be the sole result 

of the contested report.  However, his rater initially wrote her memorandum supporting his appeal and requesting bullet changes before he was considered for promotion.  In fact, no unfavorable personnel action was taken against him immediately after the NCOER was written.

4.  He further states he received an Army Commendation Medal shortly after the NCOER and his next NCOER reflected outstanding duty performance in a master sergeant position.  SFC K____'s request for alteration of his NCOER was based on the fact that she was coerced to write the negative NCOER, using not her own impressions of his duty performance, but relying only on the reports provided by Captain (CPT) C____ and First Sergeant (1SG) R____.  After his departure from the section, she began work in the Vicenza branch and was able to see the quality of his work first hand, which was exceptional.  This discovery of new information would have resulted in a much better rating had it been known at the time of rating, but these facts were kept from SFC K____ and she was given false, negative information.  Her reasoning for requesting to alter his report was only for it to reflect the truth and to correct an injustice that she was unintentionally a part of.

5.  He also states the ASRB concluded the senior rater (SR) evaluation and comments were not challenged with clear and compelling evidence that the ratings were not the considered opinions of the SR.  The SR, CPT C____, failed to report for duty on three separate occasions when he was scheduled to see patients.  The SR didn't notify anyone in his duty section or headquarters of his absence, leaving him as the clinic NCO in charge (NCOIC).  He reported the SR's absences to headquarters and was instructed to provide a memorandum detailing the SR's dereliction.  He made no accusations, he only reported the facts as known to him.  This resulted in an informal investigation being conducted by the 1SG who is not equal or senior in rank to the CPT being investigated.  He believes his rating largely reflects the CPT's contempt for him based upon his reporting the CPT's absences to headquarters.

6.  He also states, "For whatever reason, [he] received a target on [his] back and began to take hits from his commander and 1SG."  The fact is, he rebutted his counseling statements and provided evidence in his own behalf.  His written testimony provided with his appeal was dismissed as not compelling.  He was and still is a victim of this campaign against him.  It has negatively impacted his career and his family.

7.  In addition, he is including a DA Form 638 that shows he was recommended for a Meritorious Service Medal (MSM) as an end of tour award for the period 

13 October 2006 through 18 October 2009.  This award was not processed by the same command that victimized him with a negatively-written NCOER.  He requests this DA Form 638 be taken into evidence of his excellent duty performance and as a contradictory document to the negative NCOER.

8.  He states he always tried to excel in his career and his life.  He completed a bachelor's degree and is working towards a master's degree.  He served as a 1SG in 2007 and as a Garrison Operations NCO in 2008.  He deployed with Civil Affairs in 2009.  He completed the Advanced Leader Course with the highest academic average in his class, he completed the Warrior Leader Course as a Commandant's List graduate, and he completed two advanced individual training courses in military occupational specialties (MOS) 42A and 68T as the Honor Graduate.

9.  He provides:

* two DA Forms 4856 (Developmental Counseling Form)
* NCOER's for the periods ending 30 June 2007, 31 October 2007, 14 June 2008, 21 November 2008, and 1 October 2009
* 2007 DA Form 705 (Army Physical Fitness Test Scorecard)
* 2007 DA Form 5704-R (Alternate Pistol Qualification Course Scorecard)
* 2008 Recommendation for Soldier of the Quarter Board
* 17 memoranda for record (MFR)
* NCOER appeal documents
* ASRB Proceedings
* 14 June 2008 corrected NCOER
* DA Form 638 for MSM

CONSIDERATION OF EVIDENCE:

1.  The applicant requests approval of the DA Form 638 for the MSM.  The Board will not consider any request if it determines all administrative remedies available have not been exhausted.  There is no evidence the recommendation has been submitted through his chain of command for approval or disapproval.  As a result, the award will not be discussed further in this Record of Proceedings.

2.  The applicant's military records show he enlisted in the Regular Army on 12 November 1992.  He was promoted to staff sergeant/pay grade E-6 on 1 February 2007.

3.  On 4 December 2007, he received counseling for:

	a.  not being present for duty, not letting anyone in his branch know where he was, and being unreachable until 0930, 2 hours after the start of his duty day on 27 November 2007;

	b.  failing to go to his appointed place of duty at the prescribed time that was a direct violation of Article 86, Uniform Code of Military Justice, and would not be tolerated; and

	c.  a trend for being absent from duty on many occasions and receiving written counselings on 7 June, 24 September, 16 October, and 26 October 2007;

4.  On 3 December 2007, the applicant acknowledged receipt of the counseling and stated he disagreed with the foregoing information.

5.  On 5 December 2007, he received event-oriented counseling for failing to follow through on a command given to ensure he was the alternate billing official for the Vicenza Veterinary Treatment Facility (VTF) International Merchant Purchase Agreement Card (IMPAC).  That failure resulted in a significant hindrance in mission accomplishment in regard to VTF management.

6.  On 5 December 2007, the applicant acknowledged receipt of the counseling and stated he agreed.

7.  On 19 March 2008, the applicant was recommended for NCO of the Quarter.

8.  In June 2008, the applicant received a SR-option NCOER for the period 1 November 2007 through 14 June 2008 which covered 7 months of rated time for the applicant's duties serving in MOS 68T (Animal Care Sergeant).  He served as the NCOIC, Vicenza Branch, VTF.  His rater was an SFC, his SR was a CPT, and his reviewer was a lieutenant colonel (LTC).  The NCOER shows the following entries:

	a.  In Part IV (Army Value/Attributes Skills/Actions) his rater checked the "No" blocks for loyalty, duty, and selfless-service.  His rater entered the following bullet comments:  "unreliable Solider who consistently failed to perform"; "misleadingly accused Soldier of an offense by withholding pertinent information, resulting in an unnecessary investigation of incriminated Soldier"; and "repeatedly failed to report for duty."

	b.  In Part IV (Values/NCO Responsibilities) he received a "Needs Much Improvement" rating.  His rater entered the following bullet comments:  "frequently counseled for dereliction of duties and failure to obey a direct order by the officer in charge (OIC) and rater"; "consistently underperformed, and continuously failed to execute assigned tasks to standard specified often challenged by performance standards specified by the OIC"; and "earned eight credits towards bachelor's degree with a 3.48 grade point average, placing him on the honor roll for two consecutive semesters."

	c.  In Part IV (Physical Fitness and Military Bearing) he received a "Success" rating.  His rater entered the following bullet comments:  "maintains composure in the toughest of circumstances" and "conducted a vigorous physical training program, resulting in a 100-percent pass rate."

	d.  In Part IV (Leadership) he received a "Success" rating.  His rater entered the following bullet comments:  "Material Control Process binder format was successfully utilized by another VTF within the unit alleviating duplication of work," "assured that subordinates were enrolled in military or civilian education courses," and "competed in unit NCO of the Quarter."

	e.  In Part IV (Training) he received a "Success" rating.  His rater entered the following bullet comments:  "implemented branch MOS cross training program," "training replacement to process MWD [military working dog] reimbursement through the IMPAC system," and "ensured 100 percent district winter drivers training."

	f.  In Part IV (Responsibility and Accountability) he received a "Success" rating.  His rater entered the following bullet comments:  "replaced commissary officer furniture at no cost to the Army, increasing the efficacy of the space"; "consistently provided safety briefings to subordinates in preparation for extended weekends and holidays"; and "managed IMPAC with a $15,000.00 quarterly budget."

	g.  In Part V (Overall Performance and Potential) he received a "Marginal" rating from his rater.  His SR entered the following bullet comments:  "do not promote at this time," "select for ANCOC if slots are available," "failed to perform at a level commensurate with his rank," "possesses potential to excel in leadership positions with greater responsibility but has failed to display the discipline necessary to realize it," and "Solider refused to sign."

	h.  In Part Vc (Overall Performance) and in Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) he received "Fair" ratings from his SR.
9.  The NCOER shows the rater and SR authenticated this form by placing their signatures in the appropriate places and the reviewer concurred with the rater and SR and authenticated this form by placing her signature in the appropriate place.

10.  There is no available evidence showing the applicant requested a Commander's Inquiry regarding the contested NCOER.

11.  On 28 May 2009, the applicant submitted an appeal of the NCOER to the U.S. Army Human Resources Command (HRC).

12.  On 21 January 2010, the ASRB determined the overall merits of the case did not warrant the following requested relief:

* change of the bullets comments to reflect new comments provided by the rater
* removal of the SR bullet comments
* removal of the contested NCOER
* promotion reconsideration

13.  However, the ASRB determined the evidence presented was sufficient to warrant some administrative changes to the contested NCOER.  The applicant was provided a corrected copy of the contested NCOER showing Part IIIb (Duty MOS Code) was corrected to reflect "68T4O" and Part IIe (Appointed Duties) was corrected to reflect "District Safety NCO, IMPAC Holder, Property Book Officer, Alternate Retention NCO, Alternate NAF IMPAC Billing Official, and Primary Fire Warden."  He was provided a corrected copy.

14.  The applicant provided 17 MFR's, dated 5 December 2007; 25 January 2008; 1, 3, 14, 15, 16, 17, 18, 21, and 22 April 2008; 5 May 2008; 1, 17, and 27 June 2008; and 7 October 2008.  The MFR's reference the applicant's counseling for not being present for duty in November 2007; status of MWD records, x-rays, remains, and records mishandling at the Vicenza VTF; scheduled temporary duty travel arrangements; surgery with CPT C____; missed late afternoon appointment by CPT C____, CPT C____'s unavailability, and CPT C____'s missing surgery dates in 2008; the applicant's exemplary duty performance from February to September 2007; and support memoranda for the applicant's personal and professional character and conduct, his duty performance, and the intent to force the applicant out of the Army before he left the command.

15.  The applicant also provided his preceding and succeeding NCOER's which show he received ratings of excellence, success, among the best, and fully capable.

16.  The applicant provided a DA Form 638, dated 9 August 2010, wherein he was recommended for award of the MSM for outstanding meritorious service while serving as 1SG, Operations NCO, and Vicenza VTF NCOIC from 13 October 2006 through 18 October 2009.  The DA Form 638 does not show the approval or disapproval date of the award.

17.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the preparation and submission of the NCOER's for corporals through command sergeants major.  Paragraph 4-2 provides that an evaluation report accepted for inclusion in the official record of the NCO is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 states the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, 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 and that action is warranted to correct a material error, inaccuracy, or injustice.  Paragraph 6-4 provides that each report will be an independent evaluation of the rated NCO for a specific rating period.

18.  Army Regulation 623-3, paragraph 2-15, states that when it is brought to the attention of commanders that a report rendered by one of their subordinates or by a member of one of their subordinate commands may be illegal, unjust, or otherwise in violation of the regulation, they will look into the allegation.  These matters may be brought to the commander's attention by the rated NCO or anyone having knowledge of the alleged illegality, injustice, or violation.  The Commander's Inquiry will be made by a commander (major or above) in the chain of command above the designated rating official(s) involved in the allegations.  The commander will confine the inquiry to matters relating to the clarity of the report, the facts contained in the report, the compliance of the report with the regulation, and the conduct of the rated NCO and rating officials.

19.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) establishes the policies and procedures for governing promotion and reduction of Army enlisted personnel.  Paragraph 4-13 states Standby Advisory Boards (STAB) are convened to consider records of Soldiers whose records were not reviewed by a 

regular board or whose records were not properly constituted, due to material error, when reviewed by the regular board.  Reconsideration normally will be granted when an adverse NCOER reviewed by a board was subsequently declared invalid in whole or in part and was determined by the ASRB to constitute a material error.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  It states the Director, ABCMR, will manage the ABCMR day-to-day operations.  The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his NCOER for the period ending 14 June 2008 should be corrected or deleted.

2.  The applicant has not shown the contested report was not prepared in compliance with applicable regulations and policy.  The contested report appears to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the period in question.

3.  The applicant submitted a strong argument and documentation in support of his request; however, he has not shown the report to be invalid.  His rater's recommendation was carefully considered.  However, the recommendation reflects her thoughts based on subsequent dealings with the applicant.  The evidence shows the applicant received negative counseling statements covering multiple deficiencies during the rating period.  There is no evidence his rating was anything other than an objective assessment of his performance and potential during the rated period.

4.  There is no evidence the contested report contains any serious substantive deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did.

5.  The applicant failed to request a Commander's Inquiry at the time.  This is an individual's available right and option concerning NCOER's perceived to be unfair or unjust and could have made a difference based on the freshness of the rating with all involved, in place, to provide a concurrent investigation prior to the finalization of the report.  The applicant has not overcome his burden of proof to show error, injustice, or inequity.

6.  An evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  The applicant's contentions are not supported by sufficient corroborating evidence.  A subsequent recommendation for award of the MSM and favorable preceding and succeeding NCOER's are generally not a basis for correction or deletion of a report.

7.  In view of the circumstances in this case, the applicant is not entitled to promotion reconsideration/consideration to SFC under the 2009 and 2010 year criteria.  He has not shown error, injustice, or inequity.

8.  With respect to the personal hearing, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

9.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20100022020



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ABCMR Record of Proceedings (cont)                                         AR20100022020



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