IN THE CASE OF:	  

		BOARD DATE:	  3 November 2012

		DOCKET NUMBER:  AR20110016517 


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 removal of the change of rater (COR) DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the rating period 13 December 2006 through 31 August 2007 [hereafter referred to as the contested NCOER] from his records

2.  The applicant states he believes the contested NCOER led to his non-selection for promotion to master sergeant (MSG)/E-8.  He also states that prior to the submission of the contested NCOER, he was assigned to another unit.  He expressed concerns regarding the rating that was based on an incomplete Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers).  His rater agreed with him but told him that he swayed to keep the one negative bullet in place and that his signature only verifies the administrative data.  Shortly after its submission, the unit deployed from September 2007 through December 2008.  It turned out the investigating officer (IO) never turned in the AR 15-6 to the legal office and it remains unclear if any further action was ever taken on this AR 15-6.  He ultimately submitted his appeal to the Enlisted Special Review Board (ESRB) which denied his request and administratively closed his request for reconsideration.

3.  The applicant provides:

* Enlisted Record Brief (ERB)
* Initial ESRB appeal and denial memoranda
* Contested NCOER
* Last 7 NCOERs
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 August 1992 and he held military occupational specialties (MOS) 68W (Health Care Specialist), 11B (Infantryman), and 79R (Recruiter).  He served through multiple reenlistments in a variety of stateside and/or overseas assignments and he was promoted to sergeant first class (SFC)/E-7 on 1 September 2004.

2.  At the time of the contested NCOER, he was assigned to Headquarters and Headquarters Troop, 1st Squadron, 32nd Cavalry, Fort Campbell, KY, as a medical platoon sergeant.  His rater was second lieutenant (2LT) TJA, the platoon leader; his senior rater was captain (CPT) JMF, the company commander; and his reviewer was lieutenant colonel RHM, the battalion commander.  

3.  On 7 May 2007, the squadron commander temporarily suspended the applicant from his duties as a platoon sergeant after he (the squadron commander) was notified on 4 May 2007 that the applicant had misappropriated certain items from the Fort Campbell, KY, Education Center.

4.  On 10 May 2007, the squadron commander directed the appointment of an investigating officer (IO) to conduct an informal investigation into the applicant's misconduct.  The appointment memorandum directs the IO to:

* Gather facts and circumstances surrounding misappropriation of government property from the Fort Campbell, KY, Education Center, including the amount of the total loss and when the loss occurred
* Whether the loss was reported to authorities
* Any history of prior misconduct on behalf of the applicant

5.  During the month of August 2007, the applicant received the contested COR NCOER which covered 9 months of rated time from 13 December 2006 through 31 August 2007 for his duties as medical platoon sergeant.  The contested report shows the following entries:

* In Part IV(a) (Army Values), the rater box checked the "Yes" block for all 7 values
* In Part IV(b) (Values/NCO (Noncommissioned Officer) Responsibilities -Competence), the rater box-checked the "Excellence" block
* In Part IV(c) (Physical Fitness and Military Bearing), the rater box-checked the "Excellence" block
* In Part IV(d) (Leadership), the rater box-checked the "Success" block
* In Part IV(e) (Training), the rater box-checked the "Success" block
* In Part IV(f) (Responsibilities and Accountability), the rater box-checked the "Needs Improvement (Some)" block and entered the following comments:

* Brief lack of judgment led to misuse of government property
* Maintained 100% accountability of all assigned equipment valued in excess of $1M
* Accepted responsibility for own decisions and those of subordinates 

* In Part V(a) (Overall Performance and Potential – Rater), the rater box-checked the "Fully Capable" block
* In Part V(c) (Senior Rater – Overall Performance) and in Part V(d) (Senior Rater – Overall Potential), the rating of "Successful" and the "2" and "1" blocks along with the bullet comments in Part IV(e) (Senior Rater Bullet Comments):

* Promote with peers
* Has demonstrated potential for positions of increased responsibility 
* genuinely concerned for the welfare and career development of his subordinates

6.  The contested NCOER was signed by the applicant's rating officials on 18 September 2007 and was filed in his official military personnel file (OMPF).

7.  His records contain a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 10 May 2007.  However, this form is incomplete. Sections III (Checklist for Proceedings) is incomplete while Sections VI (Authentication) and VIII (Action by Appointing Authority) are blank.

8.  On 14 January 2010, he appealed the contested NCOER to the ESRB and claimed substantive error.  He stated that the negative bullet comment is prohibited by Army Regulation 623-3 (Evaluation Reporting System) because it was never substantiated by counseling or a letter of reprimand or any negative action.  

9.  On 8 July 2010, the ESRB denied his petition and found the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice.  

10.  On 12 March 2011, he submitted a request for reconsideration to the ESRB.  With his request, he submitted a statement from his former rater, 2LT TJA (now a CPT), who states that he placed the negative entry due to his inexperience at the time and that this bullet was not what he initially submitted nor did he agree with it.  He further stated that due to an incomplete investigation, nothing substantiated the negative bullet.

11.  On 29 March 2011, the ESRB returned his request without action because it was untimely.

12.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).

	a.  Paragraph 2-12 states the rater 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; counsel the rated Soldier; advise the rated Soldier as to changes in their duty description and performance objectives, when needed, during the rating period; as well as other functions. 

	b.  Paragraph 3-23 (unproven derogatory information) states no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army (HQDA).  If the rated individual is absolved, comments about the incident will not be included in the evaluation.  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.  Reports will not be delayed to await the outcome of a trial or investigation. Reports will be done when due and contain what information is verified at the time of preparation

	c.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER should be removed from his records.

2.  The applicant was under investigation for what appears to be the loss of government property.  He was temporarily suspended from his leadership position pending the results of the investigation.  An IO was appointed but the IO does not appear to have completed the investigation.  By regulation, no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.

3.  Nothing in the applicant's records suggests the investigation was complete or the appointing authority took action on this investigation.  Therefore, the negative bullet should be deleted from the contested NCOER.

4.  This action however, does not invalidate the contested NCOER or warrants its removal from the applicant's records.  In order 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 action is warranted to correct a material error, inaccuracy, or injustice.  In this case, the applicant did not provide sufficient evidence to remove the contested NCOER.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting the entry "brief lack of judgment led to misuse of government property" from Part IV(f) of the applicant's NCOER for the period 13 December 2006 through 31 August 2007
* changing the rating in the same block from "Needs Improvement (Some" to "Success"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the NCOER for the period 13 December 2006 through 31 August 2007 from his records.



      _______ _   _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)                                         AR20110016517



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ABCMR Record of Proceedings (cont)                                         AR20110016517



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