IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120005816 


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) covering the period 30 September 2007 through 31 August 2008 from his records and the period declared as non-rated time.

2.  The applicant states he was unable to appeal the NCOER because he was serving in Iraq from 2009-2010 and was being medically treated at Fort Knox, Kentucky, until 2011, by the time the complaint process was up.  As a result, he did not meet the 3-year filing deadline.  He states the report contains administrative errors in that the last counseling date was outside the rating period and he never received an initial counseling from his rater.  He states he disagrees with the negative comments and considers them to be vindictive statements made by the rater.  He also states he never had the duties and responsibilities of his position explained to him and his rater had limited contact with him.  He spent numerous hours of his own time to ensure his area of responsibility was properly administered and while he did fail his Army Physical Fitness Test (APFT), he passed it the following month.  He contends that the statements made by the rater were vindictive and due to a personality conflict between them.

3.  The applicant provides a three-page statement explaining his appeal and copies of the contested NCOER, email regarding his appeal from the Wisconsin Army National Guard (WIARNG), two DD Forms 214 (Certificate of Release or Discharge from Active Duty), APFT Scorecard, commander's inquiry, Records Clearance Certificate, three certificates of training, recommendation for award of the Reserve Component Overseas Training Ribbon, and orders to active duty for training for the period 7-22 September 2007.

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 was serving in pay grade E-8 in the WIARNG on 11 February 2009 when he received a complete-the-record report covering the period 30 September 2007-31 August 2008, evaluating him as a Signal Support System Chief.

3.  In Part Iva (Army Values), the applicant received a "NO" rating for Selfless Service.  The bullet comments by the rater state he set a mediocre example by placing his needs before his Soldiers and he consistently avoided acting as part of the team which deteriorated esprit de corps.

4.  In Parts IVb-f (Values/NCO Responsibilities) he received "Needs Improvement" ratings under Competence, Physical Fitness and Military Bearing, Leadership, Training, and Responsibility and Accountability.

5.  The bullet comments include, in part:

* "is not MOS qualified due to his inability to attend a reclassification course due to a hearing deficiency and failure to meet APFT/Height/Weight standards"
* "consistently presented a marginally professional appearance and military bearing"
* "failed to display any ability or initiative to develop personnel training or mission plans to accomplish the section's mission"
* "lack of leadership abilities and effort resulted in his removal as the Brigade S6 NCOIC [NCO in charge] for the units upcoming deployment to Iraq"
* "consistently failed to act with the authority or responsibility of a senior NCO"
* "performance during Annual Training displayed a lack of ability to remain mission focused and build the S6 team"
* "was missing or found sleeping during key missions and training opportunities"
* "consistently failed to take initiative and complete implied or not specified tasks"
* "was relieved as unit primary COMSEC [communications security] custodian due to several incidents of failing to secure Secret materials appropriately"
* "failed to accept responsibility for his actions by consistently blaming others or the situation for his inadequacies"
* "rarely attempted to train or mentor subordinates leading to the section's complete lack of confidence in his ability to lead"

6.  The rater and the senior rater rated his potential for promotion and service in positions of greater responsibility as "Poor" and the rater's comments included, in part:

* "overall poor performance for a Senior NCO despite training and schooling"
* "exhibited an inability to manage sensitive COMSEC responsibilities; was not able to achieve results"
* "has reached potential; do not select for future schooling or promotion"

7.  On 1 May 2009, an officer (major) was appointed to conduct a commander's inquiry to investigate allegations made by the applicant that the contested report was illegal, unjust, and in violation of applicable Army regulations.  He stated that the rater indicated in a sworn statement that he had counseled the applicant.  However, because no record of counseling could be produced, that counseling did not occur and was unjust and unfair to the applicant.

8.  The investigating officer (IO) also found that the last counseling date on the contested NCOER ("20080903") was outside the rated period and should be deleted.  In regard to the rater's comments, the IO found no evaluation or counseling forms to support the comments by the rating chain.  He also found that since the applicant passed his APFT 30 days after having failed it, the applicant was credible.  He makes no mention as to whether the applicant met height and weight requirements.  The IO also found that the applicant was 


removed from his duties for not being MOS qualified, having a physical profile of "3" for hearing, lack of school availability, and the applicant's request to be 
removed due to personality conflicts between him and his rater.  He also indicated that two first sergeants verified that the applicant was found laying on his cot on at least one occasion.  He further stated that while the applicant had been removed from the access roster for the COMSEC safe, he accounted for all COMSEC materials.  He concluded by stating he recommended that the report be stricken from the applicant's records due to a lack of written counseling, because the applicant was not provided any goals or objectives, and because the applicant was denied proper training for the position.  The findings of the IO were completed on 6 July 2009, 5 months and 22 days after the contested report was signed and was seven pages in length.

9.  Meanwhile, the applicant was ordered to active duty on 1 February 2009 in support of Operation Iraqi Freedom and deployed to Iraq on 3 May 2009 where he served as Petroleum, Oil, Lubricants Program Manager until he departed Iraq on 13 January 2010.  He was honorably released from active duty (REFRAD) on 7 February 2010.  He was again ordered to active duty on 1 June 2010 in support of Operation Enduring Freedom and he was REFRAD on 6 September 2011.

10.  On 3 January 2011 while assigned to a different WIARNG unit and location other than that of the contested report, the applicant received a relief-for-cause NCOER covering the period 8 January 2010 through 14 December 2010 evaluating him as an Information Systems Operator/Analyst.  In Part IV his rater gave him a "Needs Improvement" rating under "Leadership."  The rater's bullet comments included, in part:

* "unable to enforce section standards and discipline; an 11B SGT was transferred to the section in order to take charge of NCOIC duties and responsibilities"
* "displayed a poor leadership example for Soldiers to follow; slept for 3 hours while acting as the EXCON [exercise control] NCOIC and was unaware that the network was down"
* "unable to transform OIC [officer in charge] guidance into mission accomplishment; failure to pass critical SOI [signal operating instructions] changes to subordinates resulted in poor execution of an MRE [mission readiness exercise] COMMEX [communications exercise]"

11.  The rater and senior rater gave the applicant a "Marginal" and "Fair" rating in regard to his overall potential for promotion and/or service in positions of greater responsibility.  The senior rater bullet comments include, in part:

* "not performing to the level expected of a MSG [master sergeant]; unable to enforce section standards and discipline"
* "set a poor leadership example for Soldiers to follow"
* "do not promote at this time"
* "do not send to the Sergeants Major Academy"

12.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.  It states that an evaluation report accepted by Headquarters, Department of the Army (HQDA), and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly-designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that the regulatory presumption of regularity referred to in paragraphs 3-39 and 6-7 of this regulation will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.

13.  Army Regulation 623-3, paragraph 3-4, provides that failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report.  Additionally, the senior rater will ensure that support forms are returned to the rated individual when the report is forwarded to HQDA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to void the NCOER covering the period 30 September 2007 through 31 August 2008 from his official records has been carefully considered.  However, there remains insufficient evidence of a clear and compelling nature that would support overriding the presumption of regularity attached to reports accepted for filing by HQDA.

2.  A review of the commander's inquiry shows the only finding supported by sufficient evidence was the fact that the last counseling date reflected on the applicant's contested NCOER was outside the rated period and should be 


deleted.  The remainder of the findings appears to be based on his inability to secure documents substantiating the comments on the NCOER.  He provides no evidence disputing the comments of the rater and senior rater.  To the contrary, a subsequent NCOER notes several deficiencies outlined in the contested NCOER.

3.  The applicant is a senior NCO and as such is expected to initiate dialog with his rating chain if he does not understand his duties and responsibilities.  Accordingly, his claim that there was never any explanation of his goals and objectives appears to lack merit.

4.  While there is insufficient evidence to substantiate his claim that his raters were unjust in their assessments, the fact that he was subsequently relieved for cause by a completely different rating chain in a different location for essentially the same reasons as he received the contested report lends credibility to the assessment made on the contested report.

5.  Accordingly, there appears to be no basis to grant the applicant's request to void the contested NCOER from his official records.

6.  However, the applicant's contention that the last counseling date on the contested report was outside the rating period has been found to have merit and should be deleted from that report.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the last counseling date (20080903) from Part IIIf of his NCOER for the period ending 31 August 2008.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the NCOER for the period ending 31 August 2008 from his records.



      ____________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)                                         AR20120005816



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ABCMR Record of Proceedings (cont)                                         AR20120005816



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