IN THE CASE OF:	  

		BOARD DATE:	    24 April 2012

		DOCKET NUMBER:  AR20110023837 


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 transfer of his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 February 2008 through
2 July 2008 (hereafter referred to as the contested NCOER) from the performance section to the restricted section of his Official Military Personnel File (OMPF).

2.  He states:

	a.  the comments written on the contested NCOER have had an adverse affect on his career.

	b.  this was an isolated incident and was an inaccurate reflection of his military career and driving record.

	c.  Army Regulation 623-3 (Evaluation Reporting System), paragraphs 3-23a and c state no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier (i.e., charges that are later dropped or incidents of which the rated individual may later be absolved).

	d.  he was found not guilty of the charge written on the contested NCOER which was prior to his court date.

	e.  due to deployments and a change of station move, he was unable to appeal the contested NCOER within the 3-year appeal window until he returned from Iraq on 26 June 2011.
3.  He provides:

* Contested NCOER
* U.S. District Court Violation Notice
* Court document
* Uniform Policies Relating to Traffic Offenses
* North Carolina traffic offenses

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving on active duty in the rank/grade of master sergeant (MSG)/E-8.

2.  The applicant initially enlisted in the Regular Army on 7 June 1990.

3.  He was promoted to MSG on 1 July 2005.

4.  On 25 June 2008, he was charged with careless and reckless driving by North Carolina General Statutes (NCGS) 20-140.

5.  The contested NCOER is a change of rater report for the period 1 February through 2 July 2008 which rated his performance as a First Sergeant within an Airborne Signal Company.  This report shows in:

	a.  Part IVa (Army Values) all “Yes” entries.

	b.  Part IVd (Leadership), he was rated as "needs some improvement" with the comment “arrested and charged with careless and reckless driving by speed traveling 101 mph (miles per hour) on a U.S. Army military installation.”

	c.  Part V (Overall Performance and Potential), the rater assessed his overall potential for promotion and/or service as "Fully Capable."  The senior rater made the negative comment “failed to set the proper example resulting in his lateral appointment to MSG and subsequent reassignment.”

	d.  The rater listed 3 positions in which the applicant could best serve the Army at his current or next higher grade:  

* Brigade Signal Systems Support Chief
* Division Frequency Manager
* Division COMSEC (Communications Security) Custodian 


	e.  The senior rater assessed his overall performance as "Successful - 3”  and potential for promotion and/or service in positions of greater responsibility as "Superior - 3.”

6.  A review of the interactive Personnel Electronic Records Management System (iPERMS) revealed the contested NCOER was filed in the performance section of his OMPF.

7.  He provided a court document, dated 10 September 2008, from the U.S. District Court for the Eastern District of North Carolina which shows his charge of careless and reckless driving by speeding was amended to "speeding 101/50 NCGS 20-141" (driving in excess of 80 mph).  His service record does not contain any evidence that shows his charge was dismissed or that he was found not guilty of the offense.

8.  He received five NCOERs subsequent to the receipt of the contested NCOER.  The rater assessed him as “Among the Best” and the senior rater assessed him as “Successful - 1/Superior - 1 and recommended him for promotion to sergeant major.

9.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the enlisted evaluation system.  It provides principles of support, standards of service, and policies governing all work required, to include Army evaluations policies and guidance regarding redress programs, including Commander Inquiries and appeals.  Procedures, tasks, and steps pertaining to the completion of each evaluation report are contained in Department of Army Pamphlet 623-3.  Paragraph 3-23 states:

	a.  No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.

	b.  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.  If the rated individual is absolved, comments about the incident will not be included in the evaluation.

	c.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjustly prejudicial information from being permanently included in a Soldier's OMPF,
such as:

   (1)  Charges that are later dropped.
   
		(2)  Charges or incidents of which the rated individual may later be absolved.

	d.  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.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER (Officer Evaluation Report), NCOER, or AER (Academic Evaluation Report).  For all reports, if previously reported information later proved to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report in accordance with chapter 6.

	e.  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.

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 Army Personnel Qualification Records.  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 ABCMR; DASEB; Army Appeals Board, Chief of Appeals and Corrections Branch, Human Resources Command, OMPF custodian when documents have been improperly filed; Chief of the Appeals Branch of the Army Reserve Personnel Center, and the Chief of the Appeals Branch of the National Guard Personnel Center.

11.  Army Regulation 600-8-104, Table 2-1 states that an NCOER will be filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding the transfer of the contested NCOER to the restricted section of his OMPF have been carefully reviewed.  However, his service record is void of evidence which indicates an error or injustice exists in this case.  

2.  The applicant received the contested NCOER for the period 1 February through 2 July 2008 that rated his overall performance and potential as a First Sergeant as "Fully Capable" and "Successful - 3/Superior - 3."  It was properly filed in the performance section of his OMPF in accordance with the governing regulation.

3.  The contested report includes derogatory information regarding his charge of careless and reckless driving.

4.  On 25 June 2008, he was charged with careless and reckless driving by NCGS 20-140.

5.  On 10 September 2008, a court document shows his charge was amended to "speeding 101/50 NCGS 20-141," which equates to driving in excess of 80 mph.  

6.  His service record does not support his contention that the comments written on the contested NCOER have had an adverse affect on his career.  His NCOERs rendered after the issuance of the contested NCOER show he has been consistently rated as "Among the Best" by his rating officials.

7.  He contends this incident was an isolated incident and was an inaccurate reflection of his military career and driving record.  However, the evidence of record indicates he committed the traffic offense.

8.  His service record does not contain evidence and he has not provided any evidence which shows he was found not guilty or that the offense was dismissed.  The evidence of record indicates the charge was amended.  

9.  The applicant references Army Regulation 623-3, paragraphs 3-23a and c, indicating no reference will be made to an incomplete investigation.  However, the investigation was completed at the time the contested NCOER was prepared and was referenced on the report.

10.  The evidence of record does not indicate the contested NCOER was filed in error.  Therefore, there is no basis for granting the requested relief.

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)                                         AR20110023837



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ABCMR Record of Proceedings (cont)                                         AR20110023837



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