BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110019536 


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, that the Noncommissioned Officer Evaluation Report (NCOER) ending on 3 August 2008 be removed from his Official Military Personnel File (OMPF) and deemed non-rated time. 

2.  The applicant states that the basis for his appeal is that the report deviated from the established rating chain and contains derogatory information that was not substantiated and for which he was not counseled or given any disciplinary action.  He goes on to state that the reviewer on the rating chain was the S1 officer (a major); however, the brigade deputy commander served as the reviewer on this report.  He further states that at the time he submitted a sworn statement regarding an investigation regarding his having an inappropriate relationship with a subordinate, he was told that it would not reflect on his evaluation; however, that did not turn out to be the case.  He continues by stating that he questioned why the reviewer was different on the report and was told that it did not matter because reviewers did not have to meet any qualifications to serve as a reviewer.  However, he later discovered that his reviewer refused to sign the report and that is why it was changed.  

3.  The applicant provides a two-page letter explaining his appeal, a copy of a sworn statement, a copy of the contested NCOER, and statements from six members of his unit, to include his rater. 




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 July 2002 for a period of 4 years, training as a personnel service specialist.  He completed his one-station unit training at Fort Jackson, South Carolina and his airborne training at Fort Benning, Georgia before being transferred to Fort Bragg, North Carolina for assignment to the 82d Airborne Division.

2.  He has remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 1 June 2008.

3.  On 29 January 2009 he received an annual NCOER covering the period from 6 August 2007 to 5 August 2008 evaluating him as a human resources sergeant of a brigade combat team.

4.  In Part IV under Army Values/Attributes/Skills/Actions the applicant’s rater (a staff sergeant) gave him a “NO” rating under “Integrity”.  He indicated in the bullet comments that the applicant demonstrated questionable integrity; had an inappropriate relationship with a subordinate.

5.  In Part IV under “Leadership”, the rater gave him a “Needs Improvement” rating and indicated that the applicant participated in an inappropriate relationship with his subordinate.

6.  In Part V, under overall performance and potential, his senior rater (a chief warrant officer two) gave him a “Fully Capable” rating of overall potential for promotion and/or service in positions of greater responsibility.  He indicated that the applicant should be promoted upon successful rehabilitation of noted deficiencies.  His senior rater (SR) gave him a “Successful (3)” rating under performance and a “Superior (2)” rating under potential for promotion.

7.  The applicant signed the contested report indicating that his signature verifies that the data in Part I, the rating officials in Part II, the duty description in Part III, and the APFT and height/weight entries in Part IVc were correct. He also acknowledged that he was aware of the appeals process outlined in Army Regulation 623-3.  However, there is no evidence to show that he exercised his right to appeal within the 3-year requirements of the Enlisted Special Review Board (ESRB). 

8.  The supporting statement provided by the applicant’s rater indicates that the applicant’s Reviewer was supposed to be the Brigade Adjutant; however, the Brigade Deputy Commander reviewed the contested report.

9.  The supporting statement from the Brigade S-1 NCO indicates that the reviewer refused to sign the report because of disagreement between him, the rater and the senior rater and after a couple of months, the deputy commander signed as the reviewer.

10.  The statement from the former command sergeant major (now retired) indicates that he was unaware that the applicant’s report contained the comments regarding an inappropriate relationship and that the normal reviewer did not sign the report until after it had been processed as a late report.  He contends that the report was inaccurate, that the allegations were never substantiated and that the report should be removed.

11.  The statements from the human resources specialist and the applicant’s platoon sergeant both indicate that the reviewer would not sign the report because of a disagreement with the rater and senior rater.

12.  The individual whom the applicant contends was his reviewer is still assigned to Fort Bragg, North Carolina.

13.  Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 3-39 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation. 

14.  Paragraph 6-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he must produce evidence that establishes clearly and convincingly 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.

15.  Paragraph 3-16 of that regulation provides that the reviewer will ensure that the proper rater and senior rater complete the report, that the evaluations rendered by the rater and senior rater are clear, consistent, and just in accordance with known facts.  The reviewer will indicate concurrence or nonconcurrence with the rater and/or senior rater.  In the case of nonconcurrence, the reviewer will add an enclosure (not to exceed one page) to explain the nonconcurrence.  The reviewer may not direct a rater or senior rater to change an evaluation believed to be honest.  No minimum time period is required to serve as a reviewer; however, the individual must be in the line of the chain of command.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that the contested NCOER contains unverified information and that the reviewer of his report was not the individual designated on the rating scheme have been noted and appear to lack merit.  

2.  While the applicant has not provided a rating scheme in effect at the time, it appears that the deputy commander was authorized to review his report by virtue of his rank and position within the chain of command.  He was not a rating official and served only to ensure the report was properly prepared.

3.  It is also noted that the applicant contends that his normal designated reviewer would not sign the report because he did not agree with the rater and senior rater; however, that reasoning does not make any sense as it is presented.  The purpose of the reviewer is to resolve any differences or make known in the form of a letter of nonconcurrence why he does not agree with the rating officials.  Accordingly, the reviewer should not be able to refuse to complete a report for which he is designated as a reviewing official.  

4.  It is further noted that the designated reviewing official cited by the applicant as being the proper reviewer is still assigned to Fort Bragg and the applicant did not provide any statements from him.

5.  Additionally, he has failed to show through sufficient convincing evidence that the allegations regarding his relationship with a subordinate were unfounded or that they should not have been mentioned in the contested report.

6.  Therefore, in the absence of sufficient evidence to show that an error or injustice has occurred in his case, there appears to be no basis to grant his request to remove the contested report from his records.  

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)                                         AR20110019536





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ABCMR Record of Proceedings (cont)                                         AR20110019536



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