IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110018180 


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:

	a.  removal the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the rating period 1 December 2005 through             30 November 2006 wherein she was given a rating of "Fair" from her official military personnel file (OMPF); and

	b.  replacing it with the NCOER with a rating of "Successful."

2.  She states the wrong copy of the NCOER was filed in her OMPF; she needs it replaced.  

3.  She provides both copies of the NCOER.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted,
has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show she enlisted in the Regular Army on 4 April 2003.  She completed training and was awarded military occupational specialty 74D (Chemical Operations Specialist).  She was promoted to sergeant, pay grade E-5, on 1 December 2005.  

3.  She submitted a copy of and her OMPF located on the Integrated Personnel Electronic Records Management System (IPERMS) contains an annual NCOER for the period 1 December 2005 through 30 November 2006 for her duties as the Assistant Training NCO.  The NCOER shows the following entries:

	a.  In Part IV (Army Values/Attributes/Skills/Actions), the rater placed an "X" in each "Yes" block.  The rater entered the comments, "self motivated attitude toward mission accomplishments," "shows courage when faced with adversity," and "took personal pride in herself and her unit."

	b.  In Part IV(b) (Competence), the rater placed an "X" in the "Success" block and entered no comments.

	c.  In Part IV(c) (Physical Fitness & Military Bearing), the rater placed an "X" in the "Success" block and entered the following comments, "exempt from Army Physical Fitness Test (APFT) requirements in accordance with Army Regulation 40-501" and "exempt from weight control standards of Army Regulation 600-9."

	d.  In Part IV(d) (Leadership), the rater placed an "X" in the "Success" block and entered no comments.  

	e.  In Part IV(e) (Training), the rater placed an "X" in the "Success" block and entered no comments.

	f.  In Part IV(f) (Responsibility & Accountability), the rater placed an "X" in the "Success" block and entered no comments.

	g.  In Part V(a) (Overall Performance and Potential), the rater placed an "X" in the "Marginal" block.  The rater commented that the applicant could best serve the Army at her current grade or next higher grade as a Chemical Operations Specialist and listed three positions. 

	h.  In Part V(a) (Senior Rater Bullet Comments), the senior rater entered the following comment, "select for schooling when slots are available."

	i.  In Part V(c) (Senior Rater – Overall Performance) and in Part V(d) (Senior Rater – Overall Potential), the senior rater gave a rating of "Fair" and placed an "X" in the "4" (Fair) block for the applicant's overall performance and a rating of "Fair" and placed an "X" in the "4" block for the applicant's overall potential for promotion and/or service in positions of greater responsibility.  

4.  The NCOER was signed by her rater, senior rater, reviewer, and the applicant on 9 March 2007 and shows the applicant concurred with the rater and senior rater evaluations.

5.  She also submitted a copy of an annual NCOER for the period 1 December 2005 through 30 November 2006 for her duties of Assistant Training NCO.  The NCOER shows the same entries as the foregoing NCOER with the exception of the following:  in Part V(c) and in Part V(d) (Senior Rater – Overall Potential), the senior rater gave a rating of "Fully Capable” and placed an "X" in the "2" (Successful) block for the applicant's overall performance and a rating of "Superior" and placed an "X" in the "2" block for the applicant's overall potential for promotion and/or service in positions of greater responsibility.

6.  That NCOER was also signed by her rater, senior rater, reviewer, and the applicant on 9 March 2007 and shows the applicant concurred with the rater and senior rater evaluations.  That report is not identified as a "Corrected Copy."

7.  Her OMPF located on IPERMS failed to reveal a copy of the report with a rating of "Successful."

8.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the procedures for completing evaluation reports that support the Evaluation Reporting System to include the NCOER.  

	a.  Table 3-5, NCOER Part: Va: Rater - Overall Potential states a rating of Fully Capable defines NCOs who have demonstrated a good performance and strong recommendation for promotion should sufficient allocations be available.  

	b.  Table 3-5, NCOER Part: Vc: Senior Rater - Overall Performance and over potential for promotion and/or in service in positions of greater responsibilities states for a rating of "Success" a "2" rating represents a very good, solid performance, and is a strong recommendation for promotion.  For a rating of "Fair" a "4" rating represents NCOs who may require additional training/observation and should not be promoted at that time.  
	c.  Table 3-5, NCOER Part: Ve: Senior Rater bullet comments, states the senior rater must address a marginal rating given in Part Va and fair or poor ratings in Part Vc.  Bullets comments should focus on potential and address performance and/or the evaluation rendered by the rater.  If the senior rater meets the minimum time qualifications for evaluation, they must make bullet comments on potential and performance.

9.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the preparation and submission of NCOER's for corporals through command sergeants major.  

	a.  Paragraph 3-16 states the rater will take special care to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings in part IVb-f.

	b.  Paragraph 6-4 states alleged error, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated individual or anyone authorized access to the report.  

	c.  Paragraph 6-7 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.

	d.  Paragraph 6-8 states that substantive appeals will be submitted within 3 years of an NCOER.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. 

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request was considered and found to have merit.  The evidence of record shows she was issued two NCOER's for the same rating period.  The first report shows she received a rating of "Success" in Part IVb-f with a rating of "Marginal" but contained no comments.  The senior rater gave her an overall performance and promotion potential rating of "Fair" and a "4."  This report is filed on her OMPF.

2.  She submitted a copy of the second report which shows she received a rating of "Success" in Part IVb-f with a rating of "Fully Capable" and it contained no comments.  The senior rater gave her an overall performance and promotion potential rating of "Successful" and a "2."  She requested this report be filed on her OMPF.

3.  DA Pamphlet 623-3 defines of rating of "Fully Capable" for an NCO who has demonstrated a good performance and strong recommendation for promotion.  Based on the applicant receiving a rating of "Success" in Part IVb-f she should have at least received a rating of "Fully Capable" as shown on the second report. Also, the senior rater did not address the "Marginal" rating given in Part Va and "Fair" rating given in Part Vc.

4.  The second NCOER appears to represent a fair, objective and valid appraisal of her demonstrated performance and potential during the period in question.  Therefore, in the interest of justice it would be appropriate to remove the NCOER covering the rating period 2 December 2006 through 30 November 2007 with a rating of "Fair" from her OMPF and replacing it with the NCOER with a rating of "Successful."

BOARD VOTE:

________  ________  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the majority of the Board did not believe that there was sufficient evidence to warrant the relief requested.  The dissenting Board members noted that the two copies of the NCOER appear to be Xeroxed identical copies of page 1, and page 2 appears to have been changed from a “fair” to a “fully successful.”  Without additional explanation or evidence that the second copy is a valid “corrected” copy, the majority of the Board could not agree to accept it for inclusion into her file.  The majority of the Board also believed it was not enough to presume that the second NCOER was the correct NCOER just because the first NCOER did not include the required bullets to support the “marginal” and “fair” ratings.

2. Therefore, the Board determined that the evidence presented was insufficient to warrant the requested relief.




      __________XXX_______________
                 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)                                         AR20110018180



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ABCMR Record of Proceedings (cont)                                         AR20110018180



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