BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110024397 


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 his Noncommissioned Officer Evaluation Report (NCOER) for the period 1 August 2009 through 14 February 2010 (hereafter referred to as the contested NCOER) be removed from his records.

2.  The applicant states that his rater expressed in email that he did not deserve the contested NCOER he received.  He does not understand how his contested NCOER can reflect anything negative based on this email.  He is in disagreement with the following portions of his report:

	a.  Part IIIf (Counseling Dates):

* He was not counseled within the first 30 days of the new rating period in accordance with Army Regulation 623-3 (Evaluation Reporting System), paragraph 2-10c(2)
* He was not counseled until after he had been in his new duty section for 60 days
* The counseling conducted on 10 November 2009 was in reference to a reclassification packet, not his contested NCOER
* He did not receive any follow on quarterly counseling as required by Army Regulation 623-3

	b.  Part IVa (Army Values):

* He made one bad decision during the rating period, he altered an Army Physical Fitness Training (APFT) card
* He has done everything possible to turn this negative action into a positive one
* He sent an email to the chain of command and the other Soldier affected apologizing for his actions, he also apologized in person
* He feels the Army Values portion of his contested NCOER is extremely inaccurate

	c.  Part IVb (Values/NCO Responsibilities):

* This portion of his contested NCOER also makes reference to the altered APFT card
* He was never counseled for the event or substandard action
* He was removed from the Enlisted Personnel Management Directorate (EPMD) and placed into The Adjutant General Directorate (TAGD) in a 24 hour period

	d.  Part IVf (Responsibility and Accountability):

* The first bullet in this section is referencing judgment and is already mentioned in Part IVb
* The bullets on the first submission of this contested NCOER differ from the bullets on the second submission
* The second submission does not mention that he was recommended for two Army Achievement Medals (AAM) and received one during the rating period

	e.  Part V (Overall Performance and Potential):

* The bullets on the second submission of this contested NCOER were changed to have a more negative effect
* Rather than change the words to be more damaging the reviewer should have submitted a memorandum to explain the differences between the opinion of the rater and senior rater
* This section mentions his negative actions again, though he was never counseled by his rater, senior rater, or reviewer
* He has an email from his senior rater, five days before the rating period ended, stating he is going to be very successful and will make a great future sergeant major

3.  The applicant further states he received the Army Good Conduct Medal for the period 6 November 2008 through 5 November 2011 which shows that he does not portray the negative qualities stated in his contested NCOER.

4.  The applicant provides:

* NCOER (15 November 2008 - 31 July 2009)
* Email of apology, dated 26 February 2010
* 2 versions of contested NCOER (1 August 2008 - 14 February 2010)
* 5 memoranda supporting the NCOER appeal
* Evaluations reports print out
* 26 pages of various email traffic
* AAM Certificate
* 2 DA Forms 638 (Recommendation for Award)
* Certificate of appreciation
* Thank you card
* Birthday letter
* 2 certificates of achievement
* Letter of customer feedback
* Certificate of training
* Enlisted Record Brief (ERB)
* Army Good Conduct Medal Orders
* 2 self-authored memoranda referencing the evaluation report appeal

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 26 June 2003.  He completed basic combat and advance individual training.  He currently holds the military occupational specialty 42A (Human Resources Specialist).  He currently holds the rank/grade of staff sergeant (SSG)/E-6.

2.  He served in a variety of assignments stateside and overseas assignments over the course of his career, which includes assignments to the U.S. Army Human Resources Command (HRC) in St. Louis, MO.  He is currently assigned to TAGD in Fort Knox, KY.  

3.  He provides an email of apology as evidence.  The email shows that on an unknown date during the rating period 1 August 2009 through 
14 February 2010 the applicant falsified data on his APFT score card.  He admitted to and apologized for falsifying his APFT score in this email.

4.  He provided 2 versions of the contested NCOER which show: 

	a.  Part IIIf:

* Version 1 and 2 of the contested NCOER show the same data
* Initial:  13 October 2009
* Later:  10 November 2009

	b.  Part IVa:

* Version 1 and 2 of the contested NCOER show the same data
* Item 5 (Honor):  No
* Item 6 (Integrity):  No

	c.  Part IVb:

* Version 1 and 2 of the contested NCOER show the same data
* The block "Needs Improvement (Some)" was checked
* Bullet 1: "although a top performer he used poor judgment by falsifying an APFT card"

	d.  Part IVf:

* Version 1: the block "success" was checked
* Version 2: the block "Needs Improvement (Some)" was checked
* Version 1 bullet 1: "performed superbly in key roles in EPMD softball league; earned AAM for his strategic and supportive efforts"
* Version 2 bullet 1: "lacks the judgment between right and wrong; asked a coworker to update his records with knowingly false APFT data"
* Version 1 bullet 3: "hardworking and dedicated NCO; demands superior results from himself and his peers"
* Version 2 bullet 3: "hardworking and dedicated NCO "

	e.  Part Va, Rater (Overall potential for promotion and/or service in positions of greater responsibility):

* Version 1: the block "Fully Capable" was checked
* Version 2: the block "Marginal" was checked

	f.  Part Vc (Overall performance):

* Version 1: the block "Successful" was checked
* Version 2: the block "Fair" was checked

	g.  Part Vd, Senior Rater (Overall potential for promotion and/or service in positions of greater responsibility):

* Version 1 and 2 of the contested NCOER show the same data
* the block "Fair" was checked

	h.  Part Ve (Senior Rater Bullet Comments):

* Version 1 and 2 contain the same first three bullet comments, however a fourth comment was added on version 2
* Version 2 bullet 4: "although a good performer, casted a doubt on his records updating duties when he falsified his APFT card and asked another Soldier to update his records with bad data"

5.  The HRC interactive web response system (IWRS) shows version 1 of the contested NCOER was received by HRC on 10 March 2010.  HRC rejected version 1 of the contested NCOER on 7 May 2010 and stated the following in their comments:

* "Part Vc and Part Vd (senior rater) - Inconsistent rating"
* In accordance with DA Pamphlet 623-3(Evaluation Reporting System), table 3-5 "Senior rater marking shows "Promote" 1, 2 or 3 and "Do not promote" markings 4 or 5"
* "Please make corrections, re-sign, and resubmit"

6.  The rating chain made adjustments to the contested NCOER and submitted version 2 of the contested NCOER to HRC on 28 April 2011.  HRC accepted version 2 of the contested NCOER.

7.  The applicant provided:

	a.   a copy of an NCOER for the rating period 15 November 2008 through 
31 July 2009 showing he received an outstanding rating; 

	b.  two self-authored memoranda which argue that his contested NCOER was unjust; 

	c.  various documents, awards, and email listing his achievements and positive contributions during the rating period; and 

	d.  five third party memoranda supporting his appeal and arguing the merits of his case.


8.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes DA Form 2166–8 and DA Form 1059 (Service School Academic Evaluation Report).

	a.  Paragraph 1-9 states evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pam 623–3. Consideration will be given to the relative experience of the rated officer or NCO, the efforts made by the rated officer or NCO, and the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCOs of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA.

	b.  Paragraph 2-10 c (2) states the rated individual will participate in counseling, assessments to discuss duty description and performance objectives, academic standards and/or course requirements with rater.  This will be done within 30 days after the beginning of each new rating period and at least quarterly thereafter.

	c.  Paragraphs 6-3 and 6-4 states commanders are required to look into alleged errors, injustices, and illegalities in evaluation reports.  Alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander’s attention by the rated individual or anyone authorized access to the report.  The primary purpose of a Commander’s Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

	d.  Paragraph 6-11a states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption 


of regularity referred to in paragraphs 3–39 and 6–7 will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice.  The evidence presented must be of a clear and convincing, and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

	e.  Paragraph 6-11d states that for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources (see DA Pam 623–3, chap 6). Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a Commander’s or Commandant’s Inquiry may provide support for an appeal request.

9.  DA Pamphlet 623-3 outlines the procedures, tasks, and steps pertaining to the completion of each evaluation report.  

	a.  Table 3-3 states the absence of counseling will not be used as the sole basis for an appeal.  However, the lack of counseling may be used to help support other claims made in an appeal.

	b.   Paragraph 3-7 states Army Values/NCO Responsibilities is completed by the rater.  Part IVa contains a listing of the Army values that define professionalism for the Army NCO.  These Army values are needed to maintain public trust and confidence as well as the qualities of leadership and management needed to maintain an effective NCO Corps.  Table 3-4 states the rater will check either a "yes" or "no" in the values block.  Mandatory specific bullet comments are required for all "no" entries.  Base each entry on whether the rated NCO "meets" or "does not meet" the standard for each particular value. Quantitative and substantiated bullet comments are used to explain any area where rated NCO is particularly strong or needs improvement.


	c.  Table 3-4 states that in items IVb-IVf (Values/NCO Responsibilities) the rater must check one of three blocks.  For an "Excellence" block check the NCO must exceed standards by demonstrating by specific examples and measurable results; special and unusual feats achieved by only a few; and that they are clearly better than most others.  For "Success": block check the NCO must meet all standards, and must be fully competitive for schooling and promotion.  The "Needs improvement" block is used for NCOs who missed meeting some standard(s).

	d.  Table 3-5, part Va states the rater must check one of three blocks.  The "Among the best" block will be used for NCOs who demonstrated a very good, solid performance and a strong recommendation for promotion and/or service in positions of greater responsibility.  The "Fully capable" block will be used for NCOs who have demonstrated a good performance and strong recommendation for promotion should sufficient if allocations are available.  The "Marginal" block will be used for NCOs who demonstrated poor performance and should not be promoted at this time.

	e.  Table 3-5, part Vc, states the senior rater evaluates the overall potential by placing one "X" in the appropriate box.  The senior rater's box marks are independent of the rater's.  There is no specific box mark ratings required of the senior rater based on box marks made by the rater.  The following definitions will be used when completing Part Vd: "Successful/superior" number "1" rating represents the cream of the crop and is a recommendation for immediate promotion.  A number "2" rating represents a very good, solid performance and is a strong recommendation for promotion.  A number "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion.  A "Fair" number "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time.  A "Poor" number "5" rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas. 

	f.  	Table 3-5, part Vd states the senior rater rates the overall potential for promotion and/or service in positions of greater responsibility by placing one "X" in the appropriate box.  The senior rater's box marks are independent of the rater's.  There is no specific box mark ratings required of the senior rater based on box marks made by the rater.  The following definitions will be used when completing Part Vd: "Successful/superior" number "1" rating represents the cream of the crop and is a recommendation for immediate promotion.  A number "2" rating represents a very good, solid performance and is a strong 


recommendation for promotion.  A number "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion.  A "Fair" number "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time.  A "Poor" number "5" rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his contested NCOER be removed from his records has been carefully considered, and determined to lack merit.

2.  His argument that his contested NCOER should be removed because he was not counseled within the proper time frames, the counseling conducted on 
10 November 2009 was not in reference to his contested NCOER, he did not receive any follow on quarterly counseling, and he was never counseled for the event or substandard action is unfounded.  Email records show a meeting with his chain of command that took place to discuss his actions.  This constitutes a counseling session.  However, it should be noted that the absence of counseling cannot be used as the sole basis for an appeal.

3.  He also states he was removed from the Enlisted Personnel Management Directorate (EPMD) and placed into the Adjutant General Directorate (TAGD) in a 24 hour period.  This action was appropriate.  It was necessary for his chain of command to remove him from EPMD quickly after he demonstrated he could not be trusted with records updating.  

4.  He argues the Army Values portion of his contested NCOER is extremely inaccurate because he only made one bad decision during the rating period and has done everything possible to turn this negative action around.  

5.  The Army value "Honor" is defined as living up to all the Army Values, and "Integrity" is defined as doing what is right, legally or morally.  NCOs are the backbone of the Army and the leaders of Soldiers.  They are expected to set an example by living the Army values.  The fact is that he forged an official document, his APFT score card, and then asked a coworker to input the false data into his record is a breach of integrity and honor.  

6.  He states he disagrees with Part IVb (Competence) of his contested NCOER because this portion also makes reference to the altered APFT.  His rater states in this portion of his contested NCOER that he used poor judgment when 


falsifying an APFT card.  This statement is appropriate for this section since part of the evaluation rates NCOs on sound judgment.

7.  He disagrees with the first bullet in part IVf which referenced his judgment because his judgment had already been mentioned in part IVb.  This area of the NCOER rates Soldiers on being responsible for good, bad, right, and wrong.  The rater's bullet is appropriate, in that it surmises that his asking a coworker to update his record with APFT data he knows to be false shows he behaves irresponsibly. 

8.  He disagrees with the contested NCOER because the bullets and block marks on the first submission differ from the bullets and block marks on the second submission in that they are more negative and damaging and do not mention that he was recommended for two AAMs. He feels his reviewer should have submitted a memorandum to explain the differences between the opinion of the rater and senior rater rather than submit a new NCOER. However, the second version of the contested NCOER was created in order to comply with regulatory guidance at the request of HRC.  The block selections were changed to reflect the applicant's performance and to comply with the regulation.  If the rating chain made a decision to adjust or change some of the bullet comments at this time it was within their purview to make the changes they deemed appropriate.

9.  He further states he has an email from his senior rater, five days before the rating period ended, stating he is going to be very successful and will make a great future sergeant major.  While this is encouraging, the fact remains that he provided a fraudulent APFT score card and solicited another Soldier to unknowingly participate in and perpetuate the fraud.  His rater made a decision to rate him accordingly.  His rater had a responsibility as a leader to hold him accountable for his actions by including them in his NCOER.

10.  The applicant has not established clearly and convincingly that the presumption of regularity does not apply to the NCOER of contention.  He has argued that the report is unfair; however, he has not shown that a material error, inaccuracy, or injustice occurred warranting the correction of his record.

11.  Based on the foregoing, there is insufficient evidence to support 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)                                         AR20110024397



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ABCMR Record of Proceedings (cont)                                         AR20110024397



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