IN THE CASE OF:	  

		BOARD DATE:  18 April 2012

		DOCKET NUMBER:  AR20120003530 


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 change of rater Noncommissioned Officer Evaluation Report (NCOER) covering the period 1 September 2007 through 9 January 2008 from his Official Military Personnel File (OMPF).

2.  The applicant states the NCOER in question was not filed in his OMPF until a week before the 2010 Master Sergeant (MSG) promotion board and caused him to be identified for separation under the Qualitative Management Program (QMP).  He states he appealed the QMP action and he was selected for retention and is not subject to future QMP consideration.  He states the NCOER has been in his file for the past two MSG promotion selection boards and because of the derogatory nature of the report it is a detriment to his career.  He states he does not want to get passed over again for promotion to MSG because of this NCOER.

3.  The applicant provides his QMP packet including the matters in extenuation and mitigation he submitted in support of his application.

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's record shows he served on active duty in the Regular Army from 27 March 1990 through 6 June 2001 for a period of 11 years, 2 months, and 10 days, at which time he was honorably discharged in the rank/grade of staff sergeant (SSG)/E-6.  On 12 June 2001, he enlisted in the U.S. Army Reserve (USAR) and on 1 January 2002, he was promoted to sergeant first class (SFC)/E-7.

3.  The applicant’s OMPF contains a change of rater NCOER covering the period 1 September 2007 through 9 January 2008 that was signed by the rater on
25 November 2008 and by the senior rater and reviewer on 5 December 2008.  The OMPF indicates this document was accepted for filing on 19 August 2010.  In this NCOER, the applicant was evaluated as an Army Reserve Career Counselor while in an Active Guard Reserve (AGR) status.  The rater, an MSG, provided "Yes" responses to all the questions in Part IV (Army Values/Attributes/
Skills/Actions).

4.  In Part IV (Values/NCO Responsibilities) of the contested report the rater gave the applicant "Success" ratings in Part IVc (Physical Fitness & Military Bearing), Part IVe (Training), and Part IVf (Responsibility & Accountability).  He gave the applicant "Needs Improvement (Some)" in Part IVb (Competence) and Part IVd (Leadership).  He provided the bullet comments "only completed 67% of assigned enlisted and officer transfer missions during the rating period" and "inability to succeed as an area leader clearly evident during this period" to explain his rating in Part IVb and the bullet comments "inconsistent effort and focus on Retention missions; was not successful as an Area Leader," "responsible for one Soldier during this rating period, proved to be a challenge," and "a SSG performed better and exceeded her mission, ultimately becoming the assistant area leader replacing him" to explain his rating in Part IVd.

5.  The rater gave the applicant a "Marginal" rating in Part Va (Overall Performance and Potential, Rater).  The senior rater, a major, gave the applicant a 4 (Fair) rating in Part Vc (Overall Performance) and a 3 (Superior) in Part Vd (Overall potential for promotion and/or service in positions of greater responsibility).  He provided the following bullet comments in Part Va (Senior Rater Bullet Comments):


* "do not promote at this time, continue to groom for promotion"
* "Soldier needs to focus on assigned tasks and prioritize his actions"
* "needs to ensure timely payment of his debts and government credit card account"
* "Soldier refused to sign evaluation even after being counseled that he is only verifying administrative data"

6.  On 16 February 2011, the applicant was informed that as a result of information obtained from his OMPF during the Fiscal Year 2011 SGM/AGR, CSM/TPU, CSM/SMC Selection Board which convened on 2 June 2011, he was identified for possible denial of continued service under the QMP.  The applicant was informed that he could submit matters of extenuation/mitigation for consideration.

7.  On 20 April 2011, the applicant submitted matters of extenuation/mitigation for consideration regarding his potential denial of continued service under the QMP.  He indicated he was not aware of the NCOER until October 2010 when it appeared in his OMPF just before the MSG promotion selection board.  He states he was appealing the NCOER.  He outlined his service prior to receiving the NCOER and indicates that during the period of the report he was suffering from several medical problems but still received an Army Commendation Medal and Army Good Conduct Medal during the period.  He further outlined his performance subsequent to receiving the report that was highlighted by his being congratulated for his exceptional performance.  He also provided two supporting letters from his former and current area leader.  Both recommended his retention and spoke of the applicant’s demonstrated traits of dedication, commitment, loyalty, and respect which indicated he was a true leader.

8.  On 27 June 2011, the U.S. Army Human Resources Command (HRC), Chief, Transition Branch, informed the applicant the QMP selection board had recommended his retention and that he would be allowed to remain on active duty until his retention control point for his grade unless separated earlier under appropriate regulation or statute.  The applicant was further informed he would not be subject to further QMP boards unless new derogatory information was posted to his OMPF.

9.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Army's Evaluation Reporting Systems.  Paragraph 3-29 contains guidance on modifications to previously-submitted reports.  It states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the 


properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  

10.  Chapter 6 of this regulation contains guidance on the evaluation report redress program.  Section III contains guidance on evaluation appeals and paragraph 6-7 outlines appeal policies.  It states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to 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.

11.  Paragraph 6-11 of the same regulation contains guidance on the burden of proof and type of evidence required for appeals.  It states the burden of proof rests with the applicant.  The applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-39 and 6-7 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to remove the NCOER in question from his OMPF or to move it to the restricted portion of the OMPF has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  Although it appears the filing of the report in question was delayed, the evidence of record appears to show the applicant reviewed the NCOER prior to the date it was signed by the appropriate rating officials in the November/
December 2008 timeframe, as evidenced by the senior rater bullet comment that indicated the applicant refused to sign the report even though he was advised he was only verifying administrative data.

3.  Although the filing in the OMPF was delayed, the applicant has failed to provide evidence of a clear and compelling nature that shows the report evaluation contained a material error, inaccuracy, or was unjust.  The applicant argues the report will inhibit his career progression and likely prevent his promotion to MSG; however, he makes no specific argument against the actual evaluations he received during the period of the subject report.  As a result, the regulatory burden of proof to support removal of the evaluation report from the OMPF has not been met in this case.

4.  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)                                         AR20120003530



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ABCMR Record of Proceedings (cont)                                         AR20120003530



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