IN THE CASE OF:	

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100023327 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the removal of a Noncommissioned Officer Evaluation Report (NCOER) for the period 1 May 2007 through 30 April 2008 from the applicant's Official Military Personnel File (OMPF).  

2.  Counsel states there are six material errors associated with the contested NCOER:

* Irregularities with the rater's reporting of counseling dates
* Negative rating in Part IVa, loyalty, respect, and integrity; no comments to support the rating and comments listed were unsubstantiated 
* Bullet comments in Part IVa overlapped comments in Part IVb - IVf
* Rater did not write comments in Part IVb - IVf
* Several bullet comments in Part IVb - IVf were unsubstantiated
* Significant accomplishments were intentionally omitted

3.  Counsel points out the six errors cited above and maintains that these discrepancies are not in compliance with Army Regulation 623-3 (Evaluation Reporting System).  In regard to the negative rating for loyalty, counsel states there is no evidence that the applicant failed to "bear true faith and allegiance to 

the U.S. Constitution, the Army, the unit, and other Soldiers."  He also opines the negative rating in respect and equal opportunity was unsupported because there is no evidence that the applicant failed do what was right, legally, and morally.  Counsel provides excerpts from the Commander's Inquiry (CI) and states that the investigating officer (IO) found irregularities in the applicant's rating chain and the bullet comments.  Counsel continues by citing the applicant's significant accomplishments that he maintains were omitted from the contested NCOER.

4.  Counsel provides the following:

* Contested NCOER 
* Memorandum, Subject:  Request for a CI into a Written NCOER, dated     9 September 2008
* Applicant's self-authored "Sequence of Factual Events May 2007 to April 2008 NCOER"
* Applicant's self-authored "Significant Accomplishments Throughout the Rating Period"
* Recruiting Incentive Award-Production Point Worksheet
* Mission Box
* Email, Subject:  Airborne School Jump Proposal with numerous documents
* Worthington Kilbourne High School, School Visit Log
* Contact Flyer with information sheet
* Letter of recommendation, dated 15 February 2008
* Two supporting letters, dated 15 February 2008 and undated
* Thank you letter, dated 10 October 2007
* Planning Guide Requirements
* Orders awarding the Driver's Badge, dated 22 May 2007
* Email, Subject:  Production, date 14 July 2008 with Production Sheets
* Event After Action Report
* Email, Subject:  Training Schedule Saturday, dated 10 April 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant's contested NCOER for the period 1 May 2007 through 
30 April 2008 shows his rank as staff sergeant (SSG) with a date of rank of 1 October 2005.  His primary military occupational specialty (MOS) is listed as 11B (Infantryman).  This is a 12-month annual report while assigned to the 
U.S. Army Recruiting Battalion, Columbus, OH. 

2.  The contested report shows he was rated as a Prospector, in duty MOS 79R (Recruiter).  He was rated by the Station Commander, sergeant first class (SFC) D____ and senior rated by first sergeant (1SG) B____.  The reviewer was listed as the Company Commander, Major L____.  The report was personally signed by the senior rater on 7 July 2007.  The reviewer checked the block indicating that he "concurred" with rater and senior rater evaluations and electronically signed the report on 7 July 2007.  The applicant's signature and date are left blank.

3.  The contested report contains the following ratings and comments:

   a.  In Part IIIf (Counseling Dates), initial date of "20070606" and later dates of "20071108," "20080107," and "20080205" are listed.
   
   b.  In Part IVa (Army Values), "NO" is checked in blocks 1 (Loyalty);
3 (Respect/EO/EEO); and 6 (Integrity).  The rater provided the following bullet comments to support her ratings:

* failed to live up to the Army’s Values of loyalty, respect, and integrity
* did not display sound judgment

   c.  In Part IVb (Competence), the rater placed an "X" in the "Success" box with the following bullet comments: 

* earned the coveted Recruiter’s Ring for excellence in recruiting
* did not use sound judgment by misplacing Army Recruiting Information Support System
* will be better served in the United States Army in his primary MOS

   d.  In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Much)" box with the following bullet comments: 

* failed to display proper respect and courtesy toward a Senior Noncommissioned Officer
* during this rated period he allowed a Future Soldier to drive his personal [sic] owned vehicle which is prohibited by the regulation
* lost composure when under pressure and constantly made excuses
      
   e.  In Part IVe (Training), the rater placed an "X" in the "Success" box with the following bullet comment: 
* 
Soldier mission focused 
      
   f.  In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Much)" box with the following bullet comments:
   
* Soldiers [sic] lack of maturity would not allow him to take responsibility and accountability to maintain recruiting tools
* blamed others for his own shortcomings
* displayed inability to take responsibility for actions
      
   g.  In Part Va (Overall potential for promotion and/or service in positions of greater responsibility), the rater placed an "X" in the box "Fully Capable."

   h.  In Part Vc (Senior Rater overall performance) and in Part Vd (Senior Rater overall potential for promotion and/or service in positions of greater responsibility), he placed an "X" in the boxes "4/Fair."

   i.  In Part Ve (Senior Rater bullet comments), he provided the following:

* do not promote at this time
* send to advance schooling with peers
* do not recommend for future recruiting duty ever again
* place in position of less stress and under direct supervision
* Soldier states counseling dates are invalid; Soldier refuses to sign

4.  Orders, dated 22 May 2007, show he was awarded the Driver's Badge for performing duties as a driver of Army vehicles for a minimum of 12 consecutive months or 8,000 accident or traffic free miles. 
 
5.  In an unsigned memorandum, dated 9 September 2008, he requested a CI based on substantive inaccuracies.  He stated that the NCOER was negatively biased and contained both inaccurate and unsubstantiated ratings.  He reiterated his counsel's comments concerning the "six material errors associated with the contested NCOER."  Additionally, he said the NCOER was focused almost entirely on the months of December 2007 through February 2008 that made up the third quarter of the rating period.  

6.  On 25 May 2009, he requested a CI based on substantive inaccuracies.  This memorandum mirrors the 9 September 2008 memorandum above. 

7.  On 12 January 2009, an investigation was initiated to determine whether the applicant's contested NCOER was properly completed in accordance with the regulatory requirements of Army Regulation 623-3.  On 28 January 2009, the IO submitted the results of his investigation.  

	a.  The IO said SFC D____ stated she was the applicant's rater on his NCOER from May 2007 to April 2008 and 1SG B____ was his senior rater.  She also said she did conduct an initial 30-day face-to-face counseling as well as quarterly counseling for the applicant using DA Form 4856.  She stated she initially used DA Form 4856, and then transferred it to a DA Form 2166-8-1 (NCOER Counseling and Support Form).  She offered he was present and did sign and initial his counseling statements.  She stated that she no longer had any of the counseling forms in her possession because she was required to turn them in with the NCOER to her battalion.  The IO added nowhere on any of the provided DA Forms 2166-8-1 does it appear that the applicant initialed in the rated NCO portion.  He said in a memorandum for record and in a sworn email statement that the applicant maintained that he never received any initial or quarterly counseling during this rating period except the two event-oriented counselings conducted on DA Form 4856.

	b.  The IO offered that the rater put "No" in Part IV, Army Values, under blocks Loyalty, Respect, and Integrity, but there were only two bullet comments that did not address the specific issue with each "No" area.

	c.  He said the applicant's inquiry showed several different versions of the NCOER for the rated period May 2007 to April 2008 with different individuals as his rater and senior rater.  However, both of these NCOERs appear to be very similar in the bullet comments, even though they were written by different raters.  The IO stated it appears that there was some confusion as to who was actually the applicant's rater when it was time to initiate his NCOER.  After speaking with the current 1SG and securing his sworn statement, the 1SG said in a conversation with SFC D____ "everyone was under the impression that 
SFC R____ was the applicant's rater."  After the rating period started, and when the NCOER was being written it was discovered by the applicant that SFC D___
was his rater.

	d.  The IO said the applicant's inquiry lists several accomplishments and letters of performance that were never introduced into his NCOER.  These accomplishments were listed on his DA Form 2166-8-1.  He offered that the applicant made considerable efforts while working with the Worthington Kilbourne High School, and these efforts and achievements were not annotated on his NCOER.

   e.  The IO maintained there were two DA Forms 4856 in the inquiry -- one for losing a Government laptop which was a bullet on the NCOER in two places; one bullet comment in Part IVb, Competence, "did not use sound judgment by misplacing Army Recruiting Information Support System" and one bullet comment in Part IVf, Responsibility and Accountability, "Soldiers [sic] lack of maturity would not allow him to take responsibility and accountability to maintain recruiting tools."  The IO opined that even though the bullet comments were worded differently, they meant the same thing.  He said this particular incident should not have been addressed twice on the same NCOER. 

	f.  The IO stated that he spoke with 1SG B____, the applicant's senior rater.  He said SFC D____ was the applicant's rater on the contested NCOER.  He also stated that SFC D_____ did conduct counseling with the applicant on DA Forms 4856 as well as DA Form 2166-8-1.  He stated he did not conduct counseling with him and his signature was hand signed because the NCOER was completed after he retired.  The IO acknowledged that there were no initials of anyone involved in the counseling process contained on the applicant's 
DA Form 2166-8-1.

	g.  The IO found that although counseling did appear to have taken place on DA Forms 4856, they were all event oriented.  He said the standard 30-day initial face-to-face, and quarterly face-to-face counseling on DA Form 2166-8-1 either did not happen or were not done in compliance with Army Regulation 623-3.  He added Part IV, Army Values section was also not completed in compliance with the regulation.  Additionally, he offered that there was no mention of any accomplishments during the rating period although the applicant provided proof of significant accomplishments working with a local High School.  He continued that the accomplishments were not listed, but the event oriented counseling for losing the laptop computer was noted and listed twice on the applicant's NCOER. The IO recommended either the applicant's NCOER be re-written in compliance with the regulation or appealed and removed from his record.

8.  Counsel provided numerous documents that show the applicant played a major role in the success of the "Salute to Veterans" parachute demonstration sponsored by the Thank You Foundation held on 14 September 2007.  Additionally, in a letter, dated 10 October 2007, the Event Management and Community Relations representatives for the Thank You Foundation expressed their gratitude for the applicant's generosity in working with the foundation and all his work at the Battle of Hard Road.  

9.  Counsel also provided numerous hand-written visit logs documenting the applicant's visits to the Worthington Kilbourne High School.  Additionally, he 

provided two letters, one from the school's Activities Director and the other one from the Director of Athletics, expounding on the applicant's support to the school and endorsing his candidacy to be a permanent recruiter, respectively.  

10.  On 25 March 2010, the applicant appealed to the Army Special Review Board.  The board denied his request citing that in the absence of more compelling evidence which clearly and convincingly shows the presumption of regularity should not be applied to the contested report, or that the report contains material error, was inaccurate or unjust, there was no basis to grant the requested relief.

11.  A review of the applicant's previous NCOERs for the entire period he was on recruiting duty prior to the contested report, August 2004 through April 2006 shows he was rated by the station commander and senior rated by the 1SG.  Additionally, his evaluation report for the period January 2006 to April 2006 shows he was rated for 4 months with only an initial counseling date listed.

12.  Army Regulation 623-3 (Evaluation Reporting System) provides guidelines and policies for completing evaluation reports that support the Evaluation Reporting System.  The pertinent paragraphs are as follows:

	a.  Paragraph 3-2 states that rating officials must prepare complete, accurate, and fully-considered evaluation reports.  This responsibility is vital to the long-range success of the Army’s missions.  With due regard to the NCO’s current grade, experience, and military schooling, evaluations should cover failures as well as achievements.  However, evaluations will not normally be based on isolated minor incidents. 

   b.  Paragraph 3-6 states that at the beginning of the rating period, the rater will inform the rated Soldier who is in the complete rating chain and ensure the correct rating chain is recorded on DA Form 2166-8-1.  The rater will conduct a face-to-face counseling with the rated Soldier within the first 30 days of the rating period.  The rater will verify the initial face-to-face counseling by initialing on the working copy of the DA Form 2166-8-1 and will forward a copy to the senior rater for verification of face-to-face counseling.
   
   c.  Paragraph 3-16 states that the reviewer will examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just, in accordance with known facts.  Special care will be taken to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings in part IVb-f.

   d.  Paragraph 6-4 states that the primary purpose of a 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 HQDA.  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.
   
   e.  Paragraph 6-11 states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant 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 appellant.

13.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes procedures for completing evaluation reports.  The pertinent paragraphs are as follows:

   a.  Paragraph 1-4 states that commander will ensure that rating officials give timely counseling to subordinates on professionalism and job performance.  Additionally, senior raters of the evaluated Soldiers will ensure required counseling programs and support forms are maintained in their units.  
   
   b.  Paragraph 3-1 states that later counseling sessions are somewhat different from the initial face-to-face counseling session in that the primary focus is on communicating performance standards to the rated NCO.  It should specifically let the rated NCO know what is expected during the rating period.  The rater shows the rated NCO the rating chain and a complete duty description, discusses the meaning of the values and responsibilities contained on the NCOER, and explains the standards for success.  Before the rated NCO departs the counseling session, the rater records key points that were discussed and obtain the rated NCO's initials on the DA Form 2166-8-1.
   
   c.  Additionally, counseling sessions will be conducted at least quarterly for Active Army Soldiers.  These counseling sessions focus on telling the rated NCO how well they are performing.  Prior to the conclusion of the counseling session, the rater records key points discussed and obtains the rated NCO's initials on the
DA Form 2166-8-1.  The rater will maintain one DA Form 2166-8-1 for each rated NCO until after the NCOER for that period has been approved and submitted to Human Resources Command - Indianapolis.  

	d.  Table 3-3 instructs the rater to enter the actual dates of the counseling obtained from the DA Form 2166-8-1 (YYYYMMDD).  When counseling dates are omitted, the senior rater will enter a statement in part Ve, explaining why counseling was not accomplished.  The absence of counseling will not be used as the sole basis for an appeal.  However, the lack of counseling may be used to help support other claims made in an appeal.

   e.  Table 3-4 states the rater will check either a "yes" or "no" in Part IVa.  Mandatory specific bullet comments are required for all "no" entries.  Base each entry on whether the rated NCO "meets" or "does not meet" the standard for each particular value. 

   f.  Table 3-4 defines the ratings of excellence, success, and needs improvement in part IVb-f as follows:

* Excellence.  Exceeds standards; demonstrated by specific examples and measurable results; special and unusual; achieved by only a few; clearly better than most others
* Success.  Meets all standards.  Majority of ratings are in this category; fully competitive for schooling and promotion.  The goal of counseling is to bring all NCOs to this level
* Needs improvement.  Missed meeting some standard(s)

   g.  Table 3-5 defines the ratings of among the best, fully capable, and marginal as follows:

* Among the best.  NCOs who demonstrated a very good, solid performance and a strong recommendation for promotion and/or service in positions of greater responsibility
* Fully capable.  NCOs who have demonstrated a good performance and strong recommendation for promotion should sufficient allocations be available
* Marginal.  NCOs who demonstrated poor performance and should not be promoted at this time  

	h.  Table 3-5 also defines the ratings of Successful/Superior, Fair, and Poor.  It states that the following definitions will be used in Part Vc:

* Successful/superior.  A "1" rating represents the cream of the crop and is a recommendation for immediate promotion.  A "2" rating represents a very good, solid performance and is a strong recommendation for promotion.  A "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion
* Fair.  Represents NCOs who may require additional training/observation and should not be promoted at this time
* Poor.  Represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas.  Do not promote and consider for DA imposed bar to reenlistment under the Qualitative Management Program.

DISCUSSION AND CONCLUSIONS

1.  Notwithstanding the findings of the CI that the contested report should be corrected or removed in its entirety, there is insufficient evidence to support either action.

2.  The applicant and/or his counsel has failed to show that the contested report does not reflect the considered opinion of his rating chain at the time the report was rendered.

3.  While the report may contain some discrepancies, if the report is corrected in accordance with the applicable regulation it would result in the applicant receiving a lower rating.  It is the policy of this Board that individuals not be made worse off than before they applied to the Board.  A specific example would be in the area "Competence" where he received a "Success" rating and the supporting comments reflect comments that support a "Needs Improvement" rating.

4.  Counsel's contention that the comments in Parts IVb and IVf are like comments and should not have been used twice has been noted and found to lack merit.  While the comments may both relate to the same incident, they address different aspects of his Values/NCO Responsibilities.  

5.  Counsel's contention that the report is not valid because of counseling dates has also been noted and found to lack merit.  Assuming the dates are incorrect or the counseling never occurred, that in itself is not a fatal flaw that would 

require the report to be voided, especially since he received a previous report from the same rating chain that had only an initial counseling date listed.  

6.  Counsel's contention that he was unaware of who his rater and senior rater were, is also found to lack merit.  The entire period he was on recruiting duty, his rating chain was always the station commander and the 1SG.

7.  Although it cannot be determined with any degree of certainty what occurred during the rating period that caused the applicant's performance and potential to take a downturn under the same rating chain, there is insufficient evidence to warrant a change to the contested report or to remove the report in its entirety as it appears to reflect the considered opinion of the rating official at the time.

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)                                         AR20100023327



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ABCMR Record of Proceedings (cont)                                         AR20100023327



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