IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110005235 


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 his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period covering 1 October 2007 through 30 September 2008 (hereafter referred to as the contested NCOER) and any appeal documentation be removed from his Official Military Personnel File (OMPF).  He also requests to be considered for promotion by a Standby Advisory Board.  

2.  He states various blocks on the contested NCOER are erroneous.  He states:  

* his non-rated time should be 3 months instead of 6 months
* the primary military occupational specialty (PMOS) should be 92W44 to show he qualified as a non-career Recruiter
* the rating chain is incorrect and should be deleted 
* the “No” entry under Part IVa (Army Values/Attributes/Skills/Actions) for “Selfless-Service” should be deleted 
* the counseling dates should be taken off the report
* the rater’s recommended future positions should be omitted because they are not from his current MOS or rank

3.  He states:

   a.  The contested NCOER is unjust because it was written in a manner that does not follow Army regulations.  
   
   
   b.  His entire rating chain was wrong, because he was not counseled about his NCOER and he did not know who was in his rating chain.
   
   c.  He contacted the U.S. Army Recruiting Command (USAREC) Inspector General (IG) and informed the IG that his rating chain planned to give him a Relief-for-Cause NCOER for non-rated time.
   
   d.  The statements of support from a sergeant first class (SFC) and a sergeant (SGT), the three gold stars for his Recruiting Badge, and his three Certificates of Achievement were not fully considered.
   
   e.  The Army Special Review Board (ASRB) did not review one counseling by the rater so how could they determine the rating chain was proper.
   
   f.  He was never given face-to-face counseling from his rater on the contested NCOER.

4.  He provides the documents as listed in the Table of Contents.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of SFC/E-7.  

2.  He initially enlisted in the Regular Army on 27 August 1991 and was discharged on 25 January 1999.  On the next day, he enlisted in the Army National Guard and served in this component until 11 October 1999.  

3.  He enlisted in the Regular Army again on 12 October 1999 and he has continued to serve on active duty through a series of reenlistments.  He was promoted to SFC/E-7 on 1 February 2006.  

4.  On various dates in 2006, he was awarded the Combat Action Badge and the Bronze Star Medal.  He also received an NCOER for the period ending 3 June 2006 which rated his performance as a platoon sergeant as "among the best" with his overall performance as "successful, block 1" and "superior, block 1."

5.  A memorandum, dated 28 July 2006, informed Soldiers and civilians in the Salt Lake City Recruiting Battalion of the commander’s Open Door Policy.

6.  On 28 June 2007, orders were published which awarded him PMOS 92W44 and withdrew PMOS 92W4O, effective 3 August 2007.  He was also awarded the U.S. Army Basic Recruiter Badge on these orders.  

7.  A memorandum, dated 23 August 2007, informed all Boise Knight Personnel, USAREC, of the commander’s Open Door Policy.

8.  He provided a Quartermaster Professional Development Model which outlines the professional development for a Water Treatment Specialist (MOS 92W).  

9.  His DA Form 4856 (Developmental Counseling Form), dated 1 October 2007, shows he received counseling for initiation into the New Recruiter Program and he signed the counseling form.  On various dates between November 2007 and February 2008, he received counseling for:

* lack of motivation
* unwillingness to accept the challenge
* giving up on the mission
* being an ineffective recruiter
* his production for December and February 
* being a "zero roller"

10.  On 10 March 2008, he received counseling recommending that he be immediately released from the New Recruiter Program for being an ineffective recruiter.  He agreed with the counseling and signed the counseling form.  

11.  On 14 June 2008, he received counseling for being a low producer for the recruiting contract mission for June.

12.  He provided a roster of the USAREC Battalion Salt Lake Boise Recruiting Company, dated 17 April 2008, which lists the rating scheme for this unit.  His name is not listed on the roster.  

13.  His Command Sergeant Major (CSM) Phase Review Comments (Appendix E), dated June 2008, shows he was counseled on his work ethic and attitude regarding his job as a recruiter.  The CSM recommended the applicant be relieved from recruiting duty.  

14.  His USAREC Form 1270, dated 26 June 2008, shows a Six Month New Recruiter Board was held on 10 June 2008 and it found the applicant lacked the attitude, traits, and recruiting skills necessary to be successful.  After a thorough review it was found the applicant did not use his tools to assist in developing a prospecting plan or to properly annotate and update those tools with accurate data.  During the board, the applicant answered the questions posed with conviction that recruiting was too difficult for him.  Relief from recruiting duties and reassignment to his original MOS was recommended.  

15.  His USAREC Form 1271, dated 1 July 2008, shows he acknowledged notification of initiation of his involuntary release from recruiting duties.  He elected not to make a statement.  

16.  Orders, dated 4 August 2008, show he was awarded the Basic Recruiter Badge with One Gold Achievement Star.  

17.  Orders 256-906, dated 12 September 2008, show he proceeded on a permanent change of station move to Fort Campbell, KY with a reporting date of no later than 10 December 2008.  

18.  He submitted a DA Form 31 on 17 September 2008 which shows he requested 27 days of leave from 3 to 30 November 2008.

19.  He provided three copies of the contested NCOER.  The first copy, dated 3 November 2008, is a 3-month rated annual report with a non-rated code of "R."  He signed this report on 3 November 2008.  This report is not filed in his OMPF.  

20.  The second copy of the contested NCOER, dated 9 February 2009, is a 
12-month rated annual report with the non-rated code of “R.”  He signed this report on 3 November 2008.  This report is not filed in his OMPF.  

21.  The third copy of the contested NCOER, dated 3 March 2009, is a 6-month rated annual report for the period 1 October 2007 through 30 September 2008 which rated his performance as a recruiter within USAREC.  The applicant did not sign this report, but it is filed in the performance section of his OMPF.  The report shows:  

   a.  Part I (Administrative Data), block e, his PMOS as 92W4O (Water Treatment Specialist).  First Sergeant (1SG) H____ L. G_________ was the rater; Captain (CPT) D____ J. C______ was the senior rater; and Lieutenant Colonel (LTC) D____ R. C____ was the reviewer.  
   
   b.  Part 1, block i, 6 rated months
   
   c.  Part 1, block j, “R” non-rated code
   
   d.  Part III (Duty Description (Rater)), block f (Counseling Dates), he received his initial counseling on 1 October 2007 and later counseling on 10 March 2008.  

   e.  Part IVa(4) (Selfless-Service:  Puts the welfare of the nation, the Army, and subordinates before their own), contains a “no” entry with the bullet comment “placed his own personal motives and ideals above the betterment of the Army.”  
   f.  The rater listed his overall potential for promotion and/or service as "fully capable."  The senior rater made the comments:

* "promote with peers"
* "potential for average performance may be more likely in primary MOS”
* "do not recommend to be placed in instructor and or mentoring positions"
* "Soldier was served this evaluation and refused to sign"

   g.  The rater listed 3 positions in which the applicant could best serve the Army at his current or next higher grade (which were extracted from the Professional Development Model for MOS 92F (Petroleum Supply Specialist):  

		(1)  Petroleum Supply Sergeant
		(2)  Petroleum Distribution Sergeant
		(3)  Petroleum Dispatch Sergeant

   h.  The senior rater listed his overall performance as "successful" in block 3 and potential for promotion and/or service in positions of greater responsibility as "superior" in block 3.

22.  He provided a completed copy of evaluation reports available by individual lookup on his OMPF on-line.  This document shows the contested NCOER was submitted on three separate occasions and indicated on:  

* 6 November 2008, it was rejected; was completed on 21 January 2009, but no bullets were in Part IV 
* 6 November 2008, it was rejected, and was deleted as a duplicate
* 5 March 2009, it was completed

23.  He provided two NCOERs and a supporting statement from a fellow Soldier who attested he served as the Assistant Station Commander for Twin Falls Recruiting Station in Twin Falls, ID from 1 October 2007 through 7 July 2008.  He observed the applicant on a daily basis performing his duties as required of him as a recruiter.  He also attested the applicant knew what was expected of him and how to conduct himself not only as a Soldier, but as a recruiter.  This individual had the same rating chain as the applicant during the period in question.  

24.  He also provided three NCOERs and a supporting statement from another fellow Soldier who attested he served as a recruiter for Twin Falls Recruiting 


Station from 1 August 2007 through 4 April 2008.  He observed the applicant as a recruiter and stated that the applicant's desk was directly in front of his.  The 1SG seldom talked with the applicant, but she talked about him when he walked out the door.  The 1SG was rather hostile towards the applicant the entire time that he was at the Twin Falls Recruiting Station.  This individual stated the applicant was always on time, hard working, talked about the Army in a positive light, and never showed selfish behavior.  

25.  On 14 October 2008, he was awarded the Basic Recruiter Badge with Two and Three Gold Achievement Stars and he received two Certificates of Achievement in recognition of outstanding recruiting effort by earning the Recruiter Badges.  

26.  In November 2008, the applicant submitted an electronic DA Form 1559 (IG Action Request) concerning his relief-for-cause NCOER.  In a 6-page Electronic 1559, the Action Officer (AO) gave a synopsis of his findings:

	a.  the applicant was an active duty Soldier assigned to the U.S. Recruiting Command as a recruiter and was currently assigned to the Salt Lake City Recruiting Command.

	b.  the applicant stated he was being relieved from recruiting duty and was in the process of a permanent change of station to the operational Army.  His unit told him he would receive a relief-for-cause NCOER.  The applicant believed this action was against Army regulation so he contacted the IG’s office for assistance.

	c.  the unit was not authorized to issue the applicant a relief-for-cause NCOER; however, it should be noted the applicant should receive an evaluation covering the time he was assigned to the unit.  The unit commander had the authority to disapprove the applicant’s Army Good Conduct Medal.

27.  The AO informed the applicant that he would not receive a relief-for-cause NCOER and the unit was still required by regulation to complete an annual NCOER.  The evaluation would cover the entire period he was assigned to the unit and would consist of rated and non-rated time.  The applicant made additional allegations (violation of the Privacy Act) and he was belittled during the New Recruiter Certification Program Board.  These issues were forwarded to the 6th Recruiting Brigade for action.  

28.  He provided email correspondence dated in February and March 2009 which shows he was contacted by a commissioned officer from USAREC.  He was advised he should specify the administrative errors on the contested NCOER.  

29.  On 5 November 2009, the DA Suitability Evaluation Board approved the applicant’s request for removal of a Memorandum of Disqualification Statement for Award of Army Good Conduct Medal for the period 2005 to 2008 from his OMPF.  

30.  His Enlisted Record Brief, dated 10 January 2010, shows he was assigned to the Salt Lake City Recruiting Battalion from 1 October 2007 to 30 September 2008.  

31.  His DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 13 August 2010, shows he completed the Battle Staff Noncommissioned Officer Course (NCO), Class Number 27-10.  

32.  On 28 September 2010, the ASRB denied the applicant’s request for removal of the contested NCOER from his OMPF.  The ASRB proceedings included ex-parte e-mail.

33.  He provided a 2-page Memorandum for Record, dated 16 February 2011, and a 7-page Memorandum for Record, dated 28 February 2011, in which he appealed the contested NCOER.  He reiterated the statements on his application.

34.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes DA Form 67-9 (OER), DA Form 2166-8, and DA Form 1059 (AER).  

	a.  Paragraphs 1-4b(3) and (4) state commanders at all levels will ensure that reports are prepared by the individuals named in the published rating chain.  Rating chains correspond as nearly as practical to the chain of command and supervision, are drawn up by names, given effective dates, published, and made available to each rated Soldier and each member of the rating chain.  Any changes to rating chains will also be published and distributed.  No changes may be retroactive.

	b.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or 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 
DA Pam 623-3.  Consideration will be given to the following:  (a) the relative experience of the rated officer or NCO; (b) the efforts made by the rated officer or NCO; and, (c) the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCOs of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for headquarters department of the Army. 

	c.  Paragraph 2 governs the purpose and development of rating chain qualifications and special evaluation requirements.  It stipulates raters will provide their support forms, along with the SR's support forms, to the rated Soldier at the beginning of the rating period.  The SR will discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period.  This counseling will include, as a minimum, the rated Soldier's duty description and the performance objectives to attain.  The discussion will also include the relationship of the duty description and objectives with the organization's mission, problems, priorities, and similar matters.  The rated Soldier will participate in counseling, assessments and a final evaluation.  Assessment will be conducted with the rating chain throughout and at the end of the rating period.  Rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate.

	d.  Paragraph 2-15 states the SR (OER/NCOER) is the senior rating official in the military rating chain or as officially designated by the academic institution (AER).  SRs use their position and experience to evaluate the rated Soldier from a broad organizational perspective, military program of instruction, or civilian academic course standards.  SRs will ensure support forms are provided to all rated Soldiers they senior rate at the beginning of and throughout the respective rating periods; use all reasonable means to become familiar with a rated Soldier's performance; assess the ability of the rated Soldier; ensure that rating officials counsel the rated Soldier individually and throughout the rating period on meeting their objectives and complying with the professional standards of the Army; consider the information on the applicable support forms when evaluating the rated individual; evaluate the rated Soldier's potential relative to their contemporaries; and ensure that all reports, which the senior rater and subordinates write, are complete and provide a realistic evaluation in compliance with procedures established in DA Pamphlet 623-3.
	e.  Paragraph 3-2f states rating officials will prepare reports that are accurate and as complete as possible within the space limitations of the form.  This responsibility is vital to the long-range success of the Army's mission.  With due regard for the rated individual's current grade, experience, and military schooling, evaluations will cover failures as well as achievements.  Evaluations will normally not be based on a few isolated minor incidents.
	f.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, department of the Army selection boards and career managers can make intelligent decisions.  

35.  DA Pamphlet 623-3 (ERS) prescribes the procedures for completing evaluation reports that support the ERS.  

   a.  Paragraph 3-4, Table 3-1, states up to nine digits of the PMOS code will be entered (for example, 19E3O, 42A5MA3, and 18Z5PW9LA).  If an NCO does not possess an additional skill identifier or language identifier, only a five digit MOS is entered.  An alpha or numeric entry may be used to denote the last digit of the skill level (0 or O).

   b.  Paragraph 3-6, Table 3-3, states counseling dates will be entered on the NCOER.  If omitted the SR will enter a statement in Part Ve (Senior Rater Bullet Comments) 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.

36.  Army Regulation 601-1 (Assignment of Enlisted Personnel to the USAREC) establishes policies and procedures for the selection, training, management of Soldiers of the USAREC.   

	a.  Paragraph 2-11 states all Soldiers initially assigned to USAREC undergoing the new recruiter certification program (NRCP) are considered new recruiters.  New recruiters will not normally be assigned to supervisory positions of any type or to locations, such as one-person recruiting stations, where supervision is limited.  New recruiters normally will have to complete the entire 
6-month period in the NRCP.  The period of the NRCP is nonrated time per 
Army Regulation 623–3.




	b.  Paragraph 5-5b states recruiters who fail to complete the New Recruiter Program will be governed by policy set by the Commanding General, USAREC.  New recruiters must be identified as ineffective during the first 6 months on recruiting duty or during any approved extension to the NRCP (not to exceed 
3 months).  Normally, new recruiters will not be recommended for involuntary reassignment before they have completed at least 5 months in the NRCP.  Because of the unique requirements of recruiting duty, reassignment while serving as a new recruiter (except for reasons of unsuitability) will not be construed as a reflection on an NCO’s overall ability as a Soldier.  The ineffective new recruiter relief is not documented in the individual’s OMPF.

37.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  Paragraph 4-13 states the Deputy Chief of Staff, G-1 or designee may approve cases for referral to a Standby Advisory Board upon determining that a material error existed in a Soldier's Official Military Personnel File when the file was reviewed by a promotion board.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was in the NRCP from 1 October 2007 through 1 July 2008.  By regulation, new recruiters normally will have to complete the entire 6-month period in the NRCP and the period of the NRCP is nonrated time.  Additionally, new recruiters must also be identified as ineffective during the first 6 months on recruiting duty or during any approved extension of the NRCP (not to exceed 3 months).  Since the applicant was identified as ineffective during the first 6 months, the contested NCOER properly reflects a 
6-month nonrated period. 

2.  Orders published on 28 June 2007 awarded him PMOS 92W44 and withdrew PMOS 92W4O, effective 3 August 2007.  However, he did not successfully complete the probationary period to qualify as a recruiter and he was released from recruiting duties in July 2008.  As a result, he was reassigned to his original PMOS 92W4O.  By regulation, if an NCO does not possess an additional skill identifier or language identifier, only a five digit MOS is entered on the NCOER.  An alpha or numeric entry may be used to denote the last digit of the skill level (0 or O).  Therefore, his PMOS 92W4O is properly entered on the contested NCOER.

3.  The applicant contends the rating chain should be deleted.  He provided a rating scheme, dated 17 April 2008, for the USAREC Battalion Salt Lake Boise Recruiting Company.  Although his name is not listed on this rating scheme, he has not provided sufficient evidence to indicate the rating chain was inappropriate.  Therefore, there is no basis for deleting the rating chain.  

4.  He contends the “No” entry under Part IVa for “Selfless-Service” with bullet comment “placed his own personal motives and ideals above the betterment of the Army” should be deleted.  However, he has not provided clear and compelling evidence which shows the ratings on the contested NCOER were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.

5.  He also contends the counseling dates should be removed from the contested report.  However, the evidence of record shows he received counseling on 1 October 2007 for initiation in the NCRP and on 10 March 2008 for being an ineffective recruiter.  He signed both counseling forms.  Therefore, the counseling dates are correctly recorded on the contested NCOER.   

6.  He contends the rater’s future positions are not from his current MOS or rank and should be omitted.  The evidence of record shows his current MOS is 92W4O.  The rater erroneously listed three future duty positions from the MOS 92F Professional Development Model in which she believed the applicant could best serve the Army at his current or next grade.  Although the current entries do not refer to positions associated with the applicant's MOS, the positions are based upon the rater's opinion and it would not be appropriate to arbitrarily recommend three different positions.  Therefore, there is no basis for removing these future positions.  

7.  His service record is void of evidence which supports his contentions that the statements from a SFC and a SGT, his Recruiting Badges, and the three Certificates of Achievement were not fully considered by the ASRB.

8.  In addition, there is no evidence of record available to support his contention that he was never given face-to-face counseling from his rater on the contested NCOER.  

9.  He also has not provided clear and compelling evidence which shows the ratings on the contested NCOER were in violation of his rights at the time the report was rendered.  

10.  In the absence to evidence to the contrary, it appears the contested NCOER represents the considered opinions and objective judgment of the rating officials.  As a result, it is concluded that the contested NCOER was processed and accepted for filing in the OMPF in accordance with applicable regulations, and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove the contested NCOER at this time or that he is entitled to a Standby Advisory Board.

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)                                         AR20110005235



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005235



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1