IN THE CASE OF:	  

		BOARD DATE:	    9 August 2011

		DOCKET NUMBER:  AR20110005246


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, in effect, transfer or removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period
1 May 2007 through 16 January 2008 (hereafter referred to as the contested NCOER) from his official military personnel file (OMPF).

2.  The applicant states he would like to apologize for his actions as a young NCO in 2008.  The allegations were true; however, he was in love with his Soldier and they are still together.  As a result of this relationship, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) which was filed in the restricted section of his OMPF and he was reduced to specialist (SPC)/E-4.  He believes that if the Article 15 went into the restricted section of his OMPF, so should the contested NCOER.  He has learned his lesson and has not had one incident in the past 3 years.  In fact, he remained a total NCO in the same unit in which he was reduced.  He further states the contested NCOER does not accurately capture his achievements and contains only generic bullets which will hurt his career.  He is not perfect, but he has a new direction and is on a stable path.  He has rebuilt himself and knows right from wrong.  He earned an Associate Degree in General Studies and he has 13 credits left to complete his Bachelor of Arts in Communication.  His mistake has been a learning tool.


3.  The applicant specifically addresses the following entries on the contested NCOER:

	a.  The contested NCOER states he scored 295 on the Army Physical Fitness Test (APFT); however, he did not receive an "excellent rating";

	b.  His Senior Rater (SR) listed "Tool Room Custodian" as a position the applicant could serve in the current or next higher grade indicating his lack of worth;

	c.  He was rated as fully capable by his rater but the SR rated his overall potential as "Fair" and his overall promotion potential/service in position of greater responsibility as "Poor"; and

	d.  The SR "Capitalized General Order Number One so it would be a main focus."

4.  The applicant provides a copy of the contested NCOER.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a staff sergeant (SSG)/E-6 serving on active duty.

2.  The contested NCOER is a Change of Rater report which covers the period 
1 May 2007 through 16 January 2008.  His rank is shown as specialist (SPC) and his principal duty title as Squad Leader.  The report shows in:

	a.  Part IVa (Army Values), the rater box-checked "NO" for "Integrity" and commented:

* Committed to squad, platoon and unit's mission
* Failed to set the example
* Actions caused conflict with his Squad and peers

	b.  Part IVc (Physical Fitness and Military Bearing), the rater box-checked "Success (Meets std [standard])," and noted:

* motivated, enthusiastic NCO, physically fit and able to lead from the front
* scored 295 on last APFT
* was a confident NCO


	c.  Part IVd (Leadership), the rater box-checked "Needs Improvement (Some)," and noted:

* performed leadership duties in a decisive and positive manner with exceptional results; often placing unit needs above his own
* failed to set the example by having an inappropriate relationship with one of his Soldiers
* lacked the ability to tell the truth when questioned

	d.  Part Va (Rater - Overall potential for promotion and/or service in positions of greater responsibility), the rater selected "Fully Capable."

	e.  Part Vb (Rater - List 3 positions in which the rated NCO could best serve the Army at his/her current or next higher grade), the rater entered:

* Mechanic
* Tool Room Custodian
* Shop Foreman

	f.  Part Va (SR Bullet Comments), the SR noted:

* promote when the Army feels it's necessary
* prepared his Soldiers to successfully complete the promotion board
* did not set the example to his Soldiers by violating General Order Number One
* violated General Order Number One with a Soldier that he was in charge of 

	g.  Parts Vc and d (SR - Overall performance and overall potential for promotion and/or service in positions of greater responsibility), the SR selected "Fair - 4" and "Poor - 5" respectively.

3.  The contested NCOER shows all rating officials authenticated it with their electronic signature.  The reviewer concurred with the rater and SR evaluations.  Further, the applicant signed the form verifying the rating officials, duty description, counseling dates, and APFT/Height/Weight entries were correct; that he has seen the completed report; and that he was aware of the appeal process of Army Regulation 623-3 (Evaluation Reporting System).

4.  Review of the applicant's interactive Personnel Electronic Records Management System (iPERMS) file did not reveal any Article 15's on file in his OMPF.


5.  There is no evidence the applicant requested a Commander's Inquiry or that he appealed this NCOER to the U.S. Army Human Resources Command, Fort Knox, KY.

6.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  The burden of proof rests with the recipient.  Appeals for the transfer of OMPF entries to the restricted section do not include documents that have their own regulatory appeal authority, such as evaluation reports and court-martial orders.

7.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the evaluation reporting system.  Rating officials make assessments of performance and potential against a standard - Army values, the Army’s leadership doctrine framework, the organization’s mission, and a Soldier’s particular set of duties, responsibilities, tasks, and objectives using a series of box checks, narratives, bullet comments, and evaluation rating techniques.  In addition, the regulation states:

   a.  Any technique aimed at making specific words, phrases, or sentences stand out from the rest of the narrative, including but not limited to underlining and the excessive use of capital letters is prohibited.

   b.  When NJP is given and filed in the restricted section or locally under Army Regulation 27-10, rating officials may not comment on the fact that such NJP was given to a rated Soldier.  This does not preclude mentioning the rated Soldier's underlying misconduct that served as the basis for the NJP.

   c.  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.
   d.  NCOER's may have administrative errors or may not accurately record the rated individual’s potential or the manner in which he/she performed their duties.  The Redress Program protects the Army’s interests and ensures fairness to the evaluated NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.  Commander’s Inquiry and Evaluation Appeals are separate actions.  Rated individuals may seek an initial means of redress through a Commander’s Inquiry; however, a Commander’s Inquiry is not a prerequisite for submission of an appeal.

8.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the procedures for completing Army evaluation reports.  Paragraph
3-8, table 3-5 states there is no specific box mark ratings required of the SR based on box marks made by the rater.  The following definitions will be used when completing Part Vd:

	a.  Successful/superior -

		(1)  "1” rating represents the cream of the crop and is a recommendation for immediate promotion.

		(2)  “2” rating represents a very good, solid performance and is a strong recommendation for promotion.

		(3)  “3” rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion.

	b.  Fair - “4” rating represents NCOs who may require additional training/observation and should not be promoted at this time.

	c.  Poor -“5” rating 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 (QMP).

9.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), chapter 2 governs the composition of the OMPF and states the performance section is used for filing performance commendatory and disciplinary data.  Once placed in the OMPF the document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the section unless directed by certain agencies, to include this Board.  Evaluation reports are required to be filed in the permanent section of the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, the transfer or removal of the contested NCOER covering the rating period 1 May 2007 through 16 January 2008.

2.  He contends the contested NCOER should be transferred to the restricted fiche/removed because the Article 15 was placed in his restricted section.  The evidence shows the applicant was an NCO at the time of his misconduct and he admitted to having an inappropriate relationship with another Soldier.  As a result of this misconduct, he received an Article 15 and he was reduced to SPC.  Appeals for the transfer of OMPF entries to the restricted section do not include documents that have their own regulatory appeal authority such as evaluation reports.  There is no evidence the applicant utilized the evaluation appeal process to correct the administrative errors or to question the content of the report.  Further, once a document is placed on the OMPF it becomes a permanent record.  Therefore, there is no provision to transfer the evaluation to the restricted section of his OMPF.

3.  In reference to the removal of the contested NCOER, the applicant's contentions are noted; however, he failed to provide any evidence which clearly shows a substantive error or injustice existed in the processing of his evaluation report.  There is no evidence the contested NCOER contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, he has not shown that the rating officials’ evaluations represented 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.

4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100029917



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ABCMR Record of Proceedings (cont)                                         AR20110005246



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