IN THE CASE OF:	  

		BOARD DATE:  22 March 2012

		DOCKET NUMBER:  AR20110023559 


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 a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 May 2007 through 31 January 2008 from his official military personnel file (OMPF).

2.  The applicant states:

	a.  In the process of reviewing his record, he noticed an NCOER which he had never seen or signed covering a period when he and the first sergeant (1SG), his rater, were not on good terms.

	b.  His 1SG was not happy about the NCOER he actually signed because their command sergeant major (CSM) would not allow the 1SG to do what he wanted to do.

	c.  His 1SG informed him that he was going to get him before he retired.

	d.  The NCOER he signed never made it to his record; however, an extremely bad NCOER which shows a "No" rating under Army Values is filed in his OMPF.

	e.  The senior rater for the NCOER in question was an activated Army National Guard first lieutenant who signed the report without reading it at the 1SG's request.

	f.  He did not sign the negative NCOER and it is obvious it was submitted for inclusion in his OMPF with ill intent and not in accordance with Army regulations.
3.  The applicant provides copies of the NCOER in question and 4 pages of email documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 29 July 1995.  He is currently serving on active duty in the rank of staff sergeant as a practical nurse NCO at the U.S. Army Medical Department Activity, Fort Carson, Colorado.

2. The applicant's record shows he received an NCOER covering the period 1 May 2007 through 31 January 2008 in which he was evaluated as a squad leader in military occupational specialty 91W (Healthcare Specialist).  Part II (Authentication) includes the rater, senior rater, and reviewer's digital signatures.

3.  In Part IVa (Army Values/Attributes/Skills/Actions (Rater)), the rater responded "NO" to questions 2 (Duty – Fulfills Their Obligations) and 5 (Honor – Lives Up to All the Army Values), and provided following the comments:

* "cannot be relied upon to fulfill his obligations"
* "failed to comply with instructions of superiors on several occasions"
* "strongly supports the Army Equal Employment Opportunity/Equal Opportunity Program"

4.  In Part IV (Values/NCO Responsibilities (Rater)), the rater gave the applicant a "Needs Improvement (Some)" rating in the following two blocks and supported this rating with the following comments:

* Part IVb (Competence) – "displayed poor judgment when not calling to inform 1SG when late for formation"
* Part IVd (Leadership) – "unexcused absences from duty left squad unsupervised" and "routinely missed formations"

5.  In Part V (Overall Performance and Potential), the rater gave the applicant a "Marginal" rating.  The senior rater placed the applicant in the "4 (Fair)" block in Part Vc (Overall Performance) and Part Vd (Overall Potential).  He provided the following supporting comments:

* "do not promote at this time"
* "does not possess the qualities to perform at the next higher grade"
* "has potential of being fully capable squad leader"
* "Soldier not available for signature"


6.  During the processing of this case, a statement was obtained from the senior rater listed on the NCOER in question.  He provided the following comments.

   a.  He remembered the applicant and the circumstances surrounding his evaluation which happened four years ago and he recalled the rater prepared multiple evaluations for the applicant.
   
   b.  He was the company commander of the Warrior Transition Battalion (WTB), the applicant was the squad leader, and sergeant first class B_____, was the applicant's platoon sergeant.
   
   c.  The applicant did not fulfill his obligations as a squad leader by repeatedly not coming to work on time over a period of time.
   
   d.  He made the decision to remove the applicant from the company when he called in on the morning of a scheduled quarterly mandatory formation, to report he was running late and arrived sometime after 11:00am.
   
   e.  The wounded, having traumatic injuries such as leg amputations, burns, and other conditions were wheeling themselves or pushed in to the company by their parents, sisters, brother, wife, or other relative.
   
   f.  It was his position, that after repeated attempts to correct the applicant's behavior, if the wounded were able to get out of bed and get to the company office, yet this uninjured squad leader whose job was to conduct accountability each day still could not manage to get to work on time, it was time to move him to another role.
   
   g.  Because the applicant could not get to work on time, he could not be counted on to conduct more serious job responsibilities.  (Past articles prove that the wounded, who were left unaccounted for over days, were found dead in the barracks.)
   
   h.  Perhaps the applicant has since matured, however, during his tenure under him, he was not in a position to be promoted.

7.  On 14 March 2012, the applicant was provided a copy of the Senior Rater comments for his comments or rebuttal.  He provided:

   a.  the senior rater only stated his awareness that multiple evaluations were completed on him and provided no additional information surrounding the NCOER(s) in question;
   
   b.  the senior rater was in the role of commander for a very short time during the processing of his report and primarily restated input he received from the first sergeant without knowing much of the facts;
   
   c.  once he made the CSM aware of the issues between the 1SG and himself, and additional discrepancies in the NCOER in question, the CSM ordered a new NCOER be prepared;
   
   d.  he saw the initial NCOER in draft and never signed it because the CSM requested a new NCOER be prepared;
   
   e.  it is his belief while the new report was being drafted, his 1SG added the comment "not available for signature" where his signature would have been entered, and forwarded it for inclusion in his OMPF;
   
   f.  the corrected report which included his signature was never included in his OMPF.
   
8.  The applicant provides an NCOER which evaluated him as a platoon sergeant during the period 1 May 2007 through 17 January 2008.  

   a.  Part II includes the rater, senior rater, reviewer, and applicant's digital signatures.  In Part IV, the rater responded "yes" in every block.  
   
   b.  In Part V, the rater gave the applicant a "Fully Capable" rating.
   
   c.  The senior rater placed the applicant in the "2 (Successful)" block in Part Vc and in the "2 (Superior)" block in Part Vd.  

9.  The applicant provides four pages of electronic mail communication which shows:

	a.  On 14 July 2009 while deployed for duty in Mosul, Iraq, he contacted an Army National Guard (ARNG) CSM assigned to Brooke Army Medical Center (BAMC), U.S. Army Medical Command (MEDCOM), to recover his correct NCOER covering the period May 2007 through January 2008 and to remove the contested NCOER from his record after learning of its placement in his OMPF.

	b.  The BAMC ARNG CSM requested that the applicant's NCOER be forwarded to him.  However, the CSM provided no identifiable characteristics of the NCOER in question.

	c.  The Assistant Inspector General (IG), Southern Regional Medical Command, informed the applicant he did not have an IG concern and advised him to go through the appropriate NCOER appeal process.

10.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the ERS and provides guidance regarding redress programs, including commander inquiries and appeals.  Chapter 6 contained guidance on NCOER appeals.

   a.  Paragraph 6-7 stipulated that a report accepted for filing in an NCO’s record is 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.  
   
   b.  Paragraph 6-11 contained guidance on the burden of proof necessary for a successful appeal of an NCOER that has already been accepted for filing in the OMPF.  It stated that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity attached to reports accepted for filing by Department of the Army should not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contends an incorrect NCOER containing negative comments was placed in his OMPF and should be removed and replaced with the correct NCOER.

2.  The evidence of record confirms the NCOER in question is currently included in the applicant OMPF and his digital signature is not contained on this document.  A later NCOER that included the digital signatures of the rater, senior rater, reviewer, and the applicant's was prepared and finalized on 17 April 2008.  The senior rater's recall that more than one NCOER was prepared on the applicant stands to corroborate the applicant's claim that the first report was incorrect and that a new one was prepared.  Given that the latest NCOER includes the authenticated digital signatures of the rating chain and the applicant, it is reasonable to believe that this is the correct report.  Accordingly, the current NCOER on file which rated the applicant during the period 1 May 2007 through 31 January 2008 should be removed from the applicant's OMPF and it should be replaced with the correct NCOER dated 17 April 2008.

BOARD VOTE:

___X____  ___X ___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing DA Form 2166-8 which rated the applicant during the period 1 May 2007 through 31 January 2008, from his Official Military Personnel File, and replacing it with DA Form 2166-8 dated 17 April 2008, which rated him during the period 1 May 2007 through 17 January 2008.




      _______ _   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)                                         AR20110023559



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ABCMR Record of Proceedings (cont)                                         AR20110023559



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