IN THE CASE OF:	  

		BOARD DATE:  10 July 2012

		DOCKET NUMBER:  AR20110025157 


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)) for the period November 2004 through November 2005 from her Official Military Personnel File (OMPF).

2.  The applicant states the NCOER has her name signed on it but it is not her signature.  She did not sign this NCOER on 21 January 2006 as she was in North Carolina at the time.

3.  The applicant provides her:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Two DA Forms 2166-8
* Social Security card
* Driver License
* U.S. Passport
* Three pages of email

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 enlisted in the Mississippi Army National Guard (MSARNG) on 19 September 2001 and she held military occupational specialty 51B (Carpentry and Masonry Specialist).

3.  During the month of February 2006, she received her first NCOER that covered 13 months of rated time from November 2004 through November 2005 for her duties as a carpentry/masonry specialist.  Her rater was a staff sergeant (SSG), her senior rater was a sergeant first class (SFC), and her reviewer was a first lieutenant (1LT).  The NCOER shows the following entries:

	a.  Part I (Administrative Data), block l (Rated NCO Copy) indicates the NCOER was given to the applicant on 16 February 2006.

	b.  Part II (Authentication) her signature in the block that reads, "Rated NCO:  I understand my signature does not constitute agreement or disagreement with the evaluations of the rater and senior rater.  I further understand my signature verifies that the administrative data in Part I, the rating officials in Part II, the duty description to include the counseling dates in Part III, and the APFT and height/weight entries in Part IVc are correct.  I have seen the completed report through Part V, except Parts IId and IIe.  I am aware of the appeals process of AR (Army Regulation) 623-3 (Evaluation Reporting System)."  The date of her signature is shown as 21 January 2006.

	c. Part II also shows the rater, senior rater, and reviewer all signed the form.  The date next to each signature is shown as 4 February 2006.

	d.  Part IVa (Army Values/Attributes/Skills/Actions) shows she received a "No" for block 2 (Duty), block 4 (Selfless-Service), and block 5 (Honor).  Her rater entered the following bullet comments:  "failed to attend IDT (inactive duty training) on several occasions" and "failed to report for duty when the unit was activated as part of the relief effort due to Hurricane Katrina."

	e.  Part IVb (Competence) shows she received a "Needs Some Improvement" rating.  Her rater entered the following bullet comments:  "failure to appear for duty," "shows lack of judgement," and "not committed to accomplishing her duties."

	f.  Part IVc (Physical Fitness and Military Bearing) shows she received a "Success" rating.  Her rater entered the following bullet comment:  "not tested during the rating period."

	g.  Part IVd (Leadership) shows she received a "Needs Much Improvement" rating.  Her rater entered the following bullet comment:  "has routinely set a bad example for others by failing to meet her military obligations."

	h.  Part IVe (Training) shows she received a "Needs Much Improvement" rating.  Her rater entered the following bullet comment:  "failed to meet training needs due to her absence."

	i.  Part IVf (Responsibility and Accountability) shows she received a "Needs Much Improvement" rating.  Her rater entered the following bullet comment:  "routinely failed to meet her obligations to the unit and the MSARNG."

	j.  Part Va (Overall potential for promotion and/or service in positions of greater responsibility) shows she received a "Marginal" rating.

	k.  Part Vc (Overall Performance) shows she received a "Poor" rating, Part Vd (Overall Potential) shows she received a "Poor" rating, and in Part Ve (Senior Rater Bullet Comments) the senior rater entered the following comments:  "needs to improve on attendance of drills," "may need to transfer to a unit closer to the school she is attending," and "has the potential for a good NCO."

4.  There is no available evidence showing she notified her unit that the signature on the NCOER in question was not her signature.

5.  She transferred from the MSARNG to the North Carolina ARNG (NCARNG) on 23 January 2006.

6.  She was honorably released from the NCARNG on 18 March 2008 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete her remaining service obligation.

7.  Army Regulation 623-3 states that:

	a.  The rated Soldier has a responsibility to review and sign the evaluation report after it has been completed by the senior rater before departing from a unit 


of assignment or military or civilian school of instruction.  The rated Soldier’s signature verifies that administrative data including Social Security Number, counseling dates, Army physical fitness test (APFT), and height and weight entries on the form are correct, and confirms that the rated Soldier has seen the completed report.  If the rated Soldier is unavailable to sign, or refuses to sign an evaluation report, an electronic or paper copy will be provided to him or her.

	b.  Reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her NCOER for the rating period November 2004 through November 2005 should be removed from her record because the signature on the form is not hers.

2.  The date shown as the date of the applicant's signature on the NCOER precedes the dates shown for the signatures of her rater, senior rater, and reviewer.  The signature of the rated NCO on an NCOER verifies that the administrative data listed on the NCOER is accurate and that the rated NCO has seen the completed report.  It would appear that if the signature was that of the applicant, she would not have seen the completed report until it was given to her on 16 February 2006.  

3.  However, once a report is filed in the OMPF it is presumed to be administratively correct.  To justify deletion of an NCOER, there must be 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.  The applicant does not contend that the NCOER in question contained a material error, was inaccurate, or was unjust; just that there was a possibility of an administrative error as she claims she did not sign the report on the date indicated. 

4.  While the ABCMR is not an investigative agency and while ABCMR staff members are neither trained nor qualified to determine the validity of a rated Soldier's signature, an administrative error does not justify deletion of an NCOER.  In addition, although the fact that the rated NCO's signature is prior to that of the rating officials, it does not suffice to establish that the NCOER contains a material error, inaccuracy or injustice.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110025157



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ABCMR Record of Proceedings (cont)                                         AR20110025157



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