IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20120000218 


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 correction of three entries on his Noncommissioned Officer Evaluation Report (NCOER) for the period 19 September 2007 to 18 July 2008 (hereafter referred to as the contested NCOER):

	a.  The entry under Army Values for Respect.

	b.  Rater comments stating he was "removed from the Drill Sergeant Program for violating TRADOC [Training and Doctrine Command] [Regulation] 350-6 for improper treatment of a Soldier who was being chaptered from the Army."

	c.  Senior rater comments stating he "was a very competent Drill Sergeant who made an error in judgment and was removed from Drill Sergeant duties for hazing a Soldier being chaptered from the military."

2.  He states:

* there are no supporting documents for the negative information on his NCOER
* it was not a relief for cause NCOER but a change of rater NCOER
* no action was taken under the Uniform Code of Military Justice (UCMJ) and he was not counseled
* he was rated as fully capable with a "3" for overall performance and a "1" for overall potential
* he was not removed from the Drill Sergeant Program as he was still on Drill Sergeant duty until his permanent change of station (PCS) for his next assignment
* the senior rater signed the NCOER indicating he agreed with the rater, but the senior rater stated he was removed from Drill Sergeant duties while the rater stated he was removed from the Drill Sergeant Program
* he was uninformed of the appeals process and was under the impression the time frame was under 90 days for appeal
* he wanted to wait until his PCS for fear of reprisal from his chain of command at the time
* when asked by his command sergeant major why he had not been promoted to sergeant first class/E-7, he explained his situation and was told otherwise (regarding the appeal process)

3.  He provides his NCOER for the period 19 September 2007 to 18 July 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 10 August 2001.  He is currently serving in the RA as a staff sergeant (SSG)/E-6.  

2.  The contested NCOER shows he was rated for duty as a Drill Sergeant in primary military occupational specialty code (PMOSC) 11B3X (Infantryman/Drill Sergeant) while assigned to Company F, 1st Battalion, 50th Infantry Regiment, 198th Infantry Brigade, Fort Benning, GA.  The form shows in:

	a.  Part 1g (Reason for Submission) – "Change of Rater";

	b.  Part II (Authentication) –

* his rater was a Senior Drill Sergeant
* his senior rater was his First Sergeant
* the NCOER was reviewed by his commander, who concurred with the rater and senior rater evaluations

	c.  Part III (Duty Description (Rater)) – he was rated for principal duty as a Drill Sergeant;

	d.  Part IIIf (Counseling Dates) – he was counseled on 21 September 2007, 19 December 2007, 28 March 2008, and 29 June 2008;

	e.  Part IVa (Army Values) – "No" was selected for item 3 (Respect/EO [Equal Opportunity]/EEO [Equal Employment Opportunity]) and "Yes" was selected for all other items;

	f.  Part IVa, the following was entered in the space provided for bullet comments – 

* removed from the Drill Sergeant Program for violating TRADOC [Regulation] 350-6 for improper treatment of a Soldier who was being chaptered from the Army
* set and enforced high standards for subordinates, peers, and himself
* totally committed to mission accomplishment

	g.  Part V (Overall Performance and Potential) – 

* his rater rated him as fully capable 
* his senior rater rated his overall performance as successful and his overall potential for promotion and/or service in positions of greater responsibility as superior

	h.  Part Ve (Senior Rater Bullet Comments), his senior rater entered the following –

* promote with peers and select for attendance to [Advanced NCO Course] at first opportunity
* dedicated himself to developing quality Infantrymen; took personal interest and responsibility in the training and welfare of his Soldiers
* a very competent Drill Sergeant who made an error in judgment and was removed from Drill Sergeant duties for hazing a Soldier being chaptered from the military
* possesses the ability and desire to perform will in positions of increased responsibility; will learn from his experience and make a good Platoon Sergeant

3.  The available records do not include documentation of disciplinary action taken as a result of his improper treatment of a Soldier who was being processed for discharge from the Army.

4.  A DA Form 2166-8 covering the period 19 July to 5 December 2008 shows he was rated for principal duty as a combatives instructor in PMOSC 11B30 while 


assigned to Headquarters and Headquarters Company (HHC), 198th Infantry Brigade, U.S. Army Infantry School, Fort Benning, GA.

5.  A DA Form 2166-8 covering the period 6 December 2008 to 31 October 2009 shows he was assigned to HHC, 1st Battalion, 4th Infantry Regiment (Separate), U.S. Army Europe.

6.  TRADOC Regulation 350-16 (Drill Sergeant Program) states Drill Sergeants may lose the special qualification identifier (SQI) "X" when they are removed for disciplinary reasons from the Drill Sergeant Program in accordance with Army Regulation 614-200 (Enlisted Assignments and Utilization Management).  

7.  Army Regulation 614-200 (Enlisted Assignments and Utilization Management) states, in pertinent part, a Soldier may be removed from the Drill Sergeant Program for failure to maintain high standards of military appearance, military courtesy, bearing, conduct and/or professionalism.  The regulation also states when Active Army Soldiers are removed from the Drill Sergeant Program, they will be removed from the school or unit and be assigned other duties at the installation (if possible).

8.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  Paragraph 3-23 states, in pertinent part, any verified derogatory information may be entered on an evaluation.

	b.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are 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.  

	c.  Chapter 6 defines the Evaluation Redress Program. 

		(1)  Paragraph 6-8 states substantive appeals will be submitted within 3 years of an NCOER Thru date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. 

		(2)  Paragraph 6-11d states to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration 


and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong 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.

		(3)  Paragraph 6-11d further 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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of errors on the disputed NCOER.  

2.  He states there are no supporting documents for the negative information on the disputed NCOER.  There is no requirement to file documentation supporting negative information on an NCOER.  The disputed NCOER was reviewed by his commanding officer who concurred with the rater and senior rater evaluations.  It must be presumed that the derogatory information in the NCOER was verified. 

3.  He states the disputed NCOER was not a relief for cause but a change of rater NCOER.  The reason for submission of the NCOER has no bearing on the accuracy of the derogatory information in the NCOER.

4.  He states no action was taken under the UCMJ and he was not counseled.  This cannot be verified based on his statement alone.  

5.  He states he was rated as fully capable with a "3" for overall performance and a "1" for overall potential.  The fact that his rater and senior rater were otherwise 


impressed with his performance is not evidence that the negative information on the disputed NCOER is incorrect.

6.  He states he was not removed from the Drill Sergeant Program.  The record contradicts this statement.  The NCOER he received immediately following the disputed NCOER shows he was reassigned from duty as a Drill Sergeant to duty as a combatives instructor and served in that capacity until his PCS.  This NCOER also shows the SQI "X" was removed from his PMOSC, indicating he had, in fact, been removed from the program and assigned other duties pending his PCS.  

7.  He states his rater stated he was removed from the Drill Sergeant Program, but his senior rater stated he was removed from Drill Sergeant duties.  This minor inconsistency in terminology does not rise to the level of a material error, inaccuracy or injustice that warrants correction.

8.  He states he was uninformed of the appeals process and wanted to wait to appeal until his PCS for fear of reprisal from his chain of command.  Information on the NCOER appeals process is readily available in the regulation governing the Evaluation Reporting System.  Any Army SSG should be able to locate that information with ease.  Had he done so, he would have known he had ample time after his PCS to appeal within the 3-year window stipulated in the governing regulation.  

9.  He has produced no clear and convincing evidence to establish that the presumption of regularity should not be applied to the disputed NCOER and that action is warranted to correct a material error, inaccuracy, or injustice.  Therefore, there is no basis for granting the relief he requests.

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)                                         AR20120000218





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ABCMR Record of Proceedings (cont)                                         AR20120000218



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