IN THE CASE OF:	  

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120002889 


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 the relief-for-cause noncommissioned officer evaluation report (NCOER) covering the period February through June 1997 and the corresponding memorandum, dated 3 June 1997, from his Army Military Human Resource Record (AMHRR).  He further requests the NCOER covering the period 11 January through 10 August 2007 be replaced with a corrected NCOER.

2.  He states the relief-for-cause NCOER and the corresponding memorandum have "served their purpose" and he believes he will never be recommended for promotion to master sergeant (MSG)/E-8 with the NCOER in his records.  He contends he has served with commendable results since the NCOER was issued and has even served as a first sergeant.  Before the NCOER was issued, he was the top recruiter in his battalion but was going through a divorce because of the hours he had to work and absence from his family.  He has a child with special needs whom he was trying to get help for but his chain of command viewed recruiting duties as more important.  He did not agree with his command so he took time off to help his family.

3.  He states his request for replacement of the NCOER for the period 11 January through 10 August 2007 is based solely on administrative errors in that the unit did not have access to his Army Physical Fitness Test (APFT) and height and weight records which resulted in a rating of "Needs Much Improvement."  Once the error was noticed and supporting documentation was provided, the unit attempted and continues to attempt to correct the error by submitting a corrected NCOER.  The corrected NCOER was redone by the rating chain, but it has been rejected on three different occasions within the last 4 years.  He believes he was not recommended for promotion to MSG by the U.S. Army Reserve (USAR) senior enlisted promotion board because of the "bogus" NCOER in his records.

4.  The applicant provides:

* relief-for-cause NCOER for the period February 1997 through June 1997 and memorandum
* NCOER for the period 11 January through 10 August 2007 and corrected NCOER for the same period
* NCOER for the period 1 June 2010 through 31 January 2011
* third-party memorandum for record, dated 9 January 2012
* letter from the U.S. Army Human Resources Command (USAHRC) Appeals and Correction Section, dated 23 January 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the USAR in the rank/pay grade of sergeant first class/E-7.  At the time of the relief-for-cause NCOER he was serving in the USAR Active Guard Reserve (AGR) Program in military occupational specialty 79R (Recruiter).

2.  In a memorandum, dated 3 June 1997, his brigade commander stated that after reviewing the applicant's relief packet, he determined the applicant had failed to maintain acceptable standards required for an NCO within the recruiting command.  The relief packet established that the applicant was absent from his appointed place of duty without authority, disobeyed a lawful order, and was disrespectful toward his superior NCO in violation of the Uniform Code of Military Justice.  The misconduct not only cast significant doubt on his character, but brought discredit to the recruiting force.  Therefore, he directed the applicant's reattachment from recruiting as an unsuitable recruiter.

3.  A relief-for-cause NCOER rendered for the applicant for the period February through June 1997 shows:

	a.  his principal duty was USAR field recruiter,

	b.  the Values/NCO Responsibilities section is marked "NO" in six of the seven blocks,

	c.  he needed improvement in the areas of competence, leadership, and responsibility and accountability,

	d.  his overall potential for promotion and/or service in positions of greater responsibility was marginal, and

	e.  his senior rater considered his overall performance as poor and his overall potential as poor.

4.  The NCOER was processed and filed in the performance section of his OMPF.

5.  A change-of-rater NCOER rendered for the applicant for the period 11 January through 10 August 2007 and authenticated by the rating officials on 20 August 2007 shows:

	a.  in Part IVc (Physical Fitness and Military Bearing):

* APFT is blank and Height/Weight is "67/220 NO"
* failed to take APFT during rating period
* failed and flagged for weight
* looks disheveled in uniform due to excessive weight
* Soldier is not currently making progress on weight/APFT

	b.  in Part V (Overall Performance and Potential):

* do not promote; needs time to develop as a senior leader
* a marginal performer
* failed to comply with instructions of superiors on several occasions
* continually seeks self improvement through college courses
* Soldier unavailable for signature due to geographical location/distance

	c.  his rater considered his overall potential for promotion and/or service in positions of greater responsibility as "Marginal," and

	d.  his senior rater considered his overall performance as "Fair" and his overall potential for promotion and/or service in positions of greater responsibility as "Fair."

6.  The NCOER for the period 11 January through 10 August 2007 was corrected and authenticated by rating officials in the 29 July-4 August 2008 time frame.  The corrected NCOER shows the following sections were changed to show:

	a.  in Part IVc:

* APFT is blank and Height/Weight is "67/220 YES"
* failed to take APFT during rating period
* made great progress with weight to become compliant with Army standards

	b.  In Part V:

* do not promote; needs time to develop as a senior leader
* continually seeks self improvement through college courses

	c.  his rater considered his overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable," and

	d.  his senior rater considered his overall performance as "Successful-2" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior-3."

7.  He provided a memorandum for record, dated 9 January 2012, from the reviewer of his NCOER for the period 11 January through 10 August 2007.

	a.  In August 2007, he served as the reviewer for a change-of-rater evaluation for the applicant.

	b.  At the time the report was rendered, no record of the applicant taking an APFT during the rating period could be located.  Similarly, no record of the applicant being subject to a body composition test (tape test) as a result of not meeting the screening table weight was ever located.  The rater made an appropriate notation on the evaluation report and it was processed for signature.

	c.  The applicant could not be located to arrange for signature on the report so it was processed without his signature and an appropriate comment was entered in senior rater's comments.

	d.  Subsequent to completing the evaluation report, the APFT record and the DA Form 5500 (Body Fat Content Worksheet) were provided to the rating chain establishing that the applicant had, in fact, performed an APFT and tape test during the rating the period although separate from the battalion.  At that time, he directed the modification to the NCOER to reflect the information and all members of the rating chain and the Soldier signed the evaluation in July and August 2008.

	e.  Since that time, the applicant and unit administrative personnel have been working to get the erroneous and inaccurate NCOER removed from his file and the correct NCOER inserted.

8.  The applicant submitted an evaluation report appeal to the USAHRC Appeals and Correction Section.  On 23 January 2012, that office returned his evaluation report appeal without action based on the fact that his appeal was not received within 3 years of the evaluation report "thru" date (10 August 2007) as required by the governing regulations.  He was advised to apply to this Board to resolve any issues with the evaluation report in question.

9.  Army Regulation 350-1 (Army Training and Leader Development) prescribes policies, procedures, and responsibilities for developing, managing, and conducting Army training and leader development.  Soldiers must meet the physical fitness standards set forth in this regulation and Training Circular 
3-22.20 (Army Physical Readiness Training) as measured during the APFT.  Commanders may administer the APFT as often as they wish; however, they must specify beforehand when the results are for record.  Active Army and AGR Soldiers will take the APFT at least twice each calendar year.  A minimum of 4 months will separate record tests if only two record tests are given.  The intent is for Active Army and AGR Soldiers to take a record APFT every 6 months.  Soldiers in Reserve Component troop program units will take the APFT at least once each calendar year.  A minimum of 8 months will separate record tests if only one test is given, with no more than 14 months between record tests.  There is no provision for taking a record APFT with any unit or organization other than that to which assigned.

10.  Army Regulation 600-9 (The Army Weight Control Program), Table 3-1, shows the maximum allowable weight in pounds for a male over 40 years of age measuring 67 inches in height is 176 pounds.

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

	a.  Paragraph 3-39 states that 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.  To justify deletion or amendment of a report, the Soldier 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.

	b.  Paragraph 3-39b states that requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored.  The following will not be used to alter or withdraw a report or be included in the rated individual's OMPF:

		(1)  statements from rating officials that they underestimated the rated Soldier,

		(2)  statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did,

		(3)  requests that ratings be revised, and

		(4)  statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential.  Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the NCOER prior to signing that report.

12.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System), paragraph 6-2b(3), states that statements from rating officials often reflect retrospective thinking or second thoughts.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report.  Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations.  Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the relief-for-cause NCOER for the period February through June 1997 and the corresponding memorandum, dated 3 June 1997, should be removed from his AMHRR based on having "served their purpose."  He further contends that the NCOER for the period 11 January through 10 August 2007 should be replaced with a corrected NCOER.

2.  In reference to the relief-for-cause NCOER, there is no evidence that the evaluation report contains administrative deficiencies or that it was not prepared in compliance with applicable regulations.  Additionally, he has not shown that the rating officials' evaluations represented anything other than their judgment and opinions at the time the NCOER was prepared, or that he did not commit the offenses that led to his relief for cause.  His contention that the NCOER and allied memorandum have served their purpose, and that he will never be recommended for promotion to MSG/E-8 with the NCOER in his records was noted; however, removal of the NCOER and allied documents would, in effect, place the applicant on a level playing field with Soldiers with similar years of service whose careers have not been marred by incidents of such inappropriate behavior.  Further, NCOERs are historical records of a Soldier’s duty performance.  They are not attempts to “teach a lesson” which, if learned, could be transferred to the restricted section of the AMHRR based upon “having served their purpose.”

3.  In reference to the NCOER for the period 11 January through 10 August 2007, the reviewer stated in his memorandum, dated 9 January 2012, that subsequent to completing the evaluation report, the APFT and DA Form 5500 records were provided to the rating chain establishing that the applicant had performed and APFT during the rating period.  However, the corrected NCOER still shows the applicant failed to take the APFT during the rating period.

4.    The NCOER's provided by the applicant show his height ranging between 65 and 67 inches and his weight ranging between 180 and 220 pounds.  No DA Form 705 (APFT Scorecard) or DA Form 5500 was provided as evidence of the applicant's compliance with Army programs and regulations.  Furthermore, the corrected NCOER contains substantial changes to parts IVc and V that reflect retrospective thinking by the rater and senior rater.

5.  The applicant did not provide evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the reports under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  As a result, there is insufficient evidence to grant him 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 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)                                         AR20120002889



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ABCMR Record of Proceedings (cont)                                         AR20120002889



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