BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20120003484 


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 noncommissioned officer (NCO) evaluation report (NCOER) for the period ending 30 November 2005.

2.  The applicant states the 2 years that it took for the NCOER to be completed far exceeds the allowed 90 days.  He reports he was not actually assigned to the unit shown on the NCOER nor was he really under that rating scheme.  He thinks the defects in this NCOER were not accidental but were in fact intentional.  The senior rater and the reviewer were counting on him not recognizing this until it had already been considered by a promotion board.  In fact, it did take him over 2 years to catch the irregularity.  He also points out that the senior rater's social security number is wrong.  He identifies 15 December 2011 as the date he discovered the error.

3.  The applicant provides copies of his NCOER for the period in question and those for periods ending 30 November 2006, 30 November 2007, 30 June 2008, 1 November 2009, 1 November 2010, and 1 November 2011.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, he was serving as a Regular Army staff sergeant/E-6 with approximately 16 years and 9 months of continuous active duty.

2.  On 8 September 2005, the applicant was in control of a motor vehicle with a blood alcohol concentration above .10 grams per 100 milliliters.  On 5 December 2005, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for violation of Article 111 (drunk driving).  The record of NJP is filed in the restricted portion of the applicant's interactive Personnel Electric Records Management System record.

3.  The subject relief-for-cause (RFC) NCOER covers the period 1 June 2005 through 30 November 2005.  It was signed by the applicant's rater/senior rater on 5 November 2007 (approximately 2 years after the ending date of the report), by the applicant on 6 November 2007, and by the reviewer on 10 November 2007.  It evaluated the applicant as a staff sergeant/E-6 and shows:

	a.  The same individual is listed and electronically signed as both the rater and the senior rater, but two different social security numbers are given.

	b.  Part III (Duty Description) lists the applicant's principal duty as squadron master gunner was to plan, prepare for, and execute gunnery training and gunnery associated training for a heavy mechanized airborne squadron.

	c.  Part IV (Army Values/Attributes/Skills/Actions) shows his Integrity (Does What is Right Legally and Morally) as "No."

	d.  Part IV ((Rater) Values/NCO Responsibilities) shows he was marked as successful or meeting standards but needed some improvement in leadership and noted he was relieved for driving while intoxicated and he did not present the image or bearing of a Soldier and an NCO.

	e.  Part V (Overall Performance and Potential) shows his rater marked his overall potential for promotion and/or service in positions of greater responsibility as marginal – the senior rater commented that the applicant was "totally dedicated to the unit mission" and the applicant's "poor judgment impacts ability for leadership positions."  The senior rater marked the applicant's overall performance and overall potential as fair.

4.  The next NCOER for the period ending 30 November 2006 shows a date of rank as a staff sergeant/E-6 of 1 June 2006.

5.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports including NCOER's.  It states that NCOER's 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 the rating officials at the time of preparation.  To justify deletion or amendment of the report, the applicant 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 applicant.  Substantive appeals of NCOER's must be submitted within 3 years.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) governs the composition of the OMPF and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 states the DA Form 2166-8 (NCOER) is filed in the performance section of the OMPF.

7.  The NCOER's the applicant submitted to support his application include that for the next rating period which ended on 30 November 2006.  It also was not completed or signed until November 2007.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows the RFC NCOER in question for the period ending 30 November 2005 was not completed and signed until November 2007 and two different social security numbers were listed for the same individual.

2.  However, the applicant now chooses to address only these anomalies while ignoring the fact that the NCOER was prepared because he had been relieved for cause.  He also ignores the fact that his next NCOER was also completed quite late (and at almost the same time as the one in question).

3.  Army Regulation 623-3, the governing directive, requires that substantive appeals must be filed within 3 years.  That deadline has long since past.

4.  The applicant suggests the delay in completing the RFC NCOER was planned in order to make him less promotable.  However, the delays – about 2 years for the RFC NCOER and about 1 year for the next one – suggest a subversion of  the whole evaluation process that worked to the applicant's advantage until a regular annual rotation of NCOER's had been reestablished.

5.  In view of the above, the applicant's request should be denied.



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)                                         AR20120003484



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ABCMR Record of Proceedings (cont)                                         AR20120003484



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